Farley v. Graney, No. CC857

• Court: Supreme Court of West Virginia
• Writing for the Court: CALHOUN; Kenna; In the Parkersburg case this Court refused to enjoin the operation of a junk yard in a section of the city of Parkersburg which was not clearly established as a residential community and, though stating in the opinion that 'Courts mus
• Citation: 119 S.E.2d 833,146 W.Va. 22
• Parties: W. C. FARLEY, etc. v. Patrick C. GRANEY, State Road Commissioner, etc.
• Decision Date: 20 December 1960
• Docket Number: No. CC857

Page 833

119 S.E.2d 833 146 W.Va. 22 W. C. FARLEY, etc.
v.
Patrick C. GRANEY, State Road Commissioner, etc. No. CC857. Supreme Court of Appeals of West Virginia. Submitted Sept. 21, 1960.
Decided Dec. 20, 1960.

Page 834

Syllabus by the Court.

1. A declaratory judgment proceeding against the state road commissioner to construe and determine the constitutionality of Chapter 89, Acts of the Legislature, Regular Session, 1959, is not a suit against the state within the meaning of the provisions of Section 35 of Article VI of the Constitution of West Virginia.

2. Where a controversy arises between a state officer and an individual concerning the officer's duty and authority under an act of the legislature, and concerning also the constitutionality of such act, the Declaratory Judgments Act, Acts of the Legislature, 1941, Chapter 26, Article 13, furnishes an appropriate remedy.

3. The purpose of a declaratory judgment proceeding is to anticipate the actual accrual of causes of action by anticipatory orders which adjudicate real controversies before a violation or breach results in loss to one or the other of the persons involved.

4. An act of the legislature may be construed and its constitutionality may be determined in a declaratory judgment proceeding, in case of an actual controversy involving its provisions, the act being effective at the time of the institution of such declaratory judgment proceeding, notwithstanding the fact that, by the express provisions of such act, it does not become enforceable until a subsequent date.

5. 'The police power of the state is the power of government inherent in every sovereignty to enact laws, within constitutional limits, to promote the general welfare of its citizens. The Fourteenth Amendment of the Federal Constitution does not impair the police power of a state.' Nulter v. State Road Commission, Point 2 Syllabus, 119 W.Va. 312 [193 S.E. 549, 194 S.E. 270]; Point 3 Syllabus, City of Huntington v. State Water Commission, 137 W.Va. 786 [73 S.E.2d 833].

6. 'The test of valid legislation is regislative power, not inducement.' Nulter v. State Road Commission, Point 1 Syllabus,

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119 W.Va. 312 [193 s.e. 549, 194 S.E. 270].

[146 W.Va. 23] 7. 'Courts are not concerned with questions relating to the policy of a legislative enactment. These questions are solely for the legislature.' Point 1 Syllabus, State Road Commission v. The County Court of Kanawha County, 112 W.Va. 98 [163 S.E. 815].

8. 'The general powers of the legislature are almost plenary. It can legislate on every subject not interdicted by the constitution itself.' Point 2 Syllabus, State Road Commission v. The County Court of Kanawha County, 112 W.Va. 98 [163 S.E. 815].

9. Courts must not be indifferent to the truth that within essential limitations, esthetics has a proper place in the community affairs of modern society.

10. 'In considering constitutional restraint, the negation of legislative power must be manifest beyond reasonable doubt.' Point 3 Syllabus, State Road Commission v. The County Court of Kanawha County, 112 W.Va. 98 [163 S.E. 815].

11. Chapter 89, Acts of the Legislature, Regular Session, 1959, in its general scope and broad outline, is not unconstitutional within the meaning of Section 1, 3 or 10 of Article III or Section 1 of Article V of the Constitution of West Virginia, or within the meaning of the Fourteenth Amendment of the Constitution of the United States.

12. An act of the legislature may be valid in its general scope and broad outline but invalid to the extent that the restrictions imposed thereby are clearly arbitrary and unreasonable in their application to specific property.

[146 W.Va. 24] J. Henry Francis, Jr., Lively, Light & Francis, Charleston, for plaintiff.

Paul M. Cowgill, Jr., Philip G. Terrie, Charleston, for defendant.

CALHOUN, Judge.

In this declaratory judgment proceeding instituted in the Circuit Court of Kanawha County on March 25, 1960, the plaintiff, W. C. Farley, an individual doing business as Oak Hill Wrecking, seeks a declaration as to the construction and validity of Chapter 89, Acts of the Legislature, Regular Session, 1959, which amended Chapter 17 of the Code of 1931, by adding thereto a new provision designated as Article 23. The defendant, Patrick C. Graney, is the State Road Commissioner of West Virginia and as such official is charged with the administration of the statute.

Certain questions arising upon the defendant's demurrer to the plaintiff's petition have been certified by the trial court on its own motion to this Court, pursuant to 58-5-2, Code, 1931.

By its title it is stated that the act relates 'to the establishment, maintenance, operation and licensing of junk yards; * * *'. Section 1 contains the following definitions:

"Junk' shall mean old or scrap copper, brass, rope, rags, batteries, paper, rubber, junked, dismantled or wrecked automobiles or parts thereof, iron, steel and other old or scrap ferrous or nonferrous materials.

"Junk yard' shall mean an establishment or place of business which is maintained or operated for the purpose of storing, keeping, buying or selling such junk, or for the maintenance or operation of an automobile graveyard. * * *

"Fence' shall mean an enclosure at least six feet in height so constructed and maintained as to obscure the junk in said enclosure from ordinary view to those persons passing upon the public highways in this state.'

[146 W.Va. 25] Other provisions of the act may be summarized as follows:

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1. No such business shall be operated or maintained outside a municipality without a license.

2. If such business is commenced after January 1, 1959, it must be located at least 1000 feet from a primary highway. If it is maintained within 300 feet of a secondary highway, the view thereof from the highway must be obscured by natural objects or a fence.

3. If such business, as in the plaintiff's case, was maintained and operated prior to January 1, 1959, it must be maintained and operated more than 100 feet from any primary or secondary highway right of way with the view from such highway obscured by natural objects or a fence, but it may not be enlarged, expanded, or increased in size.

4. Required fences must be at least 6 feet in height, constructed and maintained so as to obscure the materials in the enclosures 'from ordinary view to those persons passing upon the public highways in this state', must be kept in good order and repair, at all times painted, and no advertisement is permitted thereon other than the name of the licensee and the nature of the business.

5. Penalties are provided for violation of the act.

6. Though the statute became effective June 11, 1959, the provisions thereof were not enforceable until the first day of July, 1960.

In his petition for a declaratory judgment the plaintiff contends that the statute in question is unconstitutional and void in its entirety, or at least insofar as it applies to the plaintiff, in that it deprives him of life and liberty, with the means of acquiring and possessing his property and of pursuing and obtaining happiness and safety, in violation of Section 1 of Article III of the Constitution of West Virginia; that the statute takes and damages the plaintiff's property without [146 W.Va. 26] just compensation in violation of Section 9 of Article III of the Constitution of West Virginia; that the effect of the statute is to deprive the plaintiff of his property without due process of law, in violation of Section 10 of Article III of the Constitution of West Virginia and the Fourteenth Amendment of the Constitution of the United States; that it deprives the plaintiff of the equal protection of the law in contravention of the Fourteenth Amendment of the Constitution of the United States; and that the statute creates an unconstitutional delegation of legislative powers in violation of Section 1 of Article V of the Constitution of West Virginia.

The facts alleged in the petition are, for the purposes of the demurrer, taken as true. The plaintiff has been for the past eleven years engaged in the business of salvaging wrecked and disabled automobiles, rehabilitating those which can be rehabilitated, dismantling and using or selling used parts and equipment therefrom, and selling the remains to junk dealers for resale as scrap. In 1959 he had eight employees and did a gross business of $200,000.

In 1957 the plaintiff and his wife purchased a 9.29-acre tract of land near Oak Hill, Fayette County, for the sum of $6,000. This tract, on which plaintiff's business is operated, lies between the primary highway designated as U. S. Route 21--W.Va. Route 61 and the secondary highway known as Old U. S. Route 21, which is now designated as West Virginia Secondary Routes 15 and 20. According to a plat made a part of the petition, the widest portion of the tract between the two highways is approximately 345 feet; and if the 100-foot set-back provisions of Section 2 of the statute in question are applied to the tract from each of the two highways, it would leave for plaintiff's business use an area about 145 feet wide at its widest point and tapering sharply to a point about 500 feet to the southeast. The plaintiff has an office building and other small buildings located within the 100-foot area adjacent to the present U. S. Route 21. He alleges that [146 W.Va. 27] he has

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expended in improvements in excess of $10,000; that the cost of erecting the fences required by the statute will exceed the sum of $6,500; and that such portion of the tract as will remain after the set-back will be inadequate for the conduct of his business.

The three issues raised by the defendant's demurrer and the several questions certified may be summarized as follows: (1) Is the proceeding precluded under the provisions of Section 35 of Article VI of the Constitution of West Virginia, as a suit against the state? (2) Is this a controversy of...