Ghaster Properties, Inc. v. Preston

• Decision Date: 01 July 1964
• Docket Number: No. 38523,38523
• Citation: 176 Ohio St. 425,200 N.E.2d 328,27 O.O.2d 388
• Parties: , 27 O.O.2d 388 GHASTER PROPERTIES, INC., et al., Appellants and Cross-Appellees, v. PRESTON, Director of Highways, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 425

176 Ohio St. 425

200 N.E.2d 328, 27 O.O.2d 388

GHASTER PROPERTIES, INC., et al., Appellants and Cross-Appellees, v. PRESTON, Director of Highways, Appellee and Cross-Appellant.

No. 38523.

Supreme Court of Ohio.

July 1, 1964.

Syllabus by the Court

1. An owner's right as a user of his land is limited to a lawful use thereof.

2. Legislation may provide that a particular use of land shall be unlawful or a nuisance even though such use had theretofore been lawful.

3. Where a valid statute has prohibited a particular use of property or has provided that such use shall constitute a nuisance, the owner no longer has a lawful or legitimate right to so use his land.

4. Whether a statute, providing that a particular use of land shall be unlawful or a nuisance, is valid will depend upon whether it comes within the police power.

5. The general welfare of the public as a basis for the exercise of the police power encompasses more than the public health, safety and morals.

6. In considering whether a proposed statute prohibiting billboards adjacent to a highway bears a real and substantial relation to the public welfare, the General Assembly may properly give weight not only to its effect in promoting public safety but also to its effect in promoting the comfort convenience and peace of mind of those who use the highway by removing annoying intrusions upon that use.

7. The determination by the General Assembly that Sections 5516.01 to 5516.05 and 5516.99, Revised Code, bear a real and substantial relationship to the public safety and general welfare is not clearly erroneous and will not be disturbed.

9. A statute is neither unreasonable nor arbitrary because it prohibits signs which advertise a product not sold on the property but permits signs advertising products sold on the property.

9. Sections 5516.01 to 5516.05 and 5516.99, Revised Code, are valid and constitutional in their general application

10. The relation between the public welfare and the prohibition of billboards adjacent to the interstate highway system is at least as real and substantial where such billboards are visible only on access roads at an interchange with an interstate highway as where they are visible at other points on the interstate highway system.

11. A statutory prohibition against maintenance of billboards may be applied against signs in existence at the time of the enactment of such statute.

This action was instituted on October 21, 1959, in the Common Pleas Court of Allen County by Ghaster Properties, Inc., and Ghaster Outdoor Advertising, Inc., against the Director of Highways. The purpose of the action is (1) to enjoin the highway director from interfering with certain advertising signs owned and used by Ghaster and located within 660 feet of the edge of the right-of-way of Interstate Route No. 75 and access roads leading thereto and (2) for a declaratory judgment as to the validity of the Ohio statutes prohibiting the maintenance of signs adjacent to interstate highways.

These statutes were first enacted, effective in 1958, as Sections 5515.21 to 5515.24 and 5515.99, Revised Code (127 Ohio Laws, Pt. II, 14).

Effective June 28, 1961 (129 Ohio Laws, p. 1701), those statutes were repealed and replaced by Sections 5516.01 to 5516.05 and 5516.99, which, so far as pertinent to a consideration of this case, read:

Section 5516.01.

'(A) 'Advertising device' includes any outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, or any other contrivance designed, intended, or used to advertise or to give information in the nature of advertising, or any part thereof, and having the capacity of being visible from the travelway of any highway on the interstate system in this state.

'(B) 'Visible' means capable of being seen, whether or not legible, without visual aid by a person of normal acuity.

'(C) 'Interstate system' means the system of highways as defined in subsection (d), 23 U.S.C. 103, 72 Stat. 888 (1958) or amendments thereof.

'(D) 'Erect' means to construct or allow to be constructed.

'(E) 'Maintain' means to preserve, keep in repair, continue, replace, or allow to exist.'

Section 5516.02.

'No advertising device shall be erected or maintained within six hundred sixty feet of the edge of the right of way of a highway on the interstate system except the following:

'(A) Directional or other official signs or notices that are required or authorized by law;

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

'(C) Advertising devices indicating the name of the business or profession conducted on such property or which identify the goods produced, sold, or services rendered on such property;

'(D) Advertising devices which are located in commercial or industrial zones traversed by segments of the interstate system within the boundaries of incorporated municipalities as such boundaries existed on September 21, 1959, wherein the property adjacent to the interstate system is subject to municipal regulation or control.'

Section 5516.04.

'Any advertising device which violates sections 5516.02 and 5516.03 of the Revised Code, is a public and private nuisance, and the director of highways shall give thirty days notice, by registered or certified mail, to the owner or lessee of the land on which such advertising device is located, to remove such advertising device.

'If any such advertising device has not been removed on or before the expiration of thirty days following the receipt of the said notice by the owner or lessee of the land upon which the advertising device is located, the director of highways, or any of his duly authorized agents, may, at his discretion, either:

'(A) Remove, obliterate, or abate the advertising device.

* * *

* * *

'(B) File a complaint by petition in the court of common pleas of the county in which such advertising device is located, and, upon a finding by the court that a violation of sections 5516.02 to 5516.04, inclusive, of the Revised Code, exists as alleged in the petition, the court shall enter an order of abatement against the person or persons erecting or maintaining such advertising device, or against the owner or owners of the land upon which such advertising device is situated, as the case may be.'

Section 5516.99.

'Whoever erects or maintains an advertising device in violation of section 5516.02 of the Revised Code shall be fined not less than one hundred nor more than one thousand dollars.'

Ghaster has three parcels of real estate, which are outside of any municipality and are located on the north side of Route No. 30S near the interchange with Interstate Highway No. 75. On these parcels there are seven sign panels which come within the prohibitions of the foregoing statutes. All were in existence prior to June 28, 1961, the effective date of the foregoing-quoted statutory provisions.

On June 21, 1962, the Common Pleas Court held the foregoing statutes unconstitutional and issued a permanent injunction against their enforcement. (184 N.E.2d 552.) The cause was appealed to the Court of Appeals on questions of law and fact, and that court on September 18, 1963, found the existing statutes unconstitutional in their application to the foregoing Ghaster signs but otherwise refused to render a declaratory judgment on the constitutionality of those statutes. (194 N.E.2d 158.)

The cause is now before this court on appeals from the judgment of the Court of Appeals both by Ghaster and by the highway director as a case involving constitutional questions, and also pursuant to the allowance of a motion and cross-motion to certify the record.

Light, Siferd & Light, Lima, and R. A. D'Amico, Cleveland, for appellants and cross-appellees.

William B. Saxbe, Atty. Gen., Larry H. Snyder and Harry R. Paulino, Columbus, for appellee and cross-appellant.

TAFT, Chief Justice.

In his assignments of error, statement of questions of law involved, brief and argument, the Director of Highways contends that the Court of Appeals erred in declaring Sections 5516.01 to 5516.05, inclusive, and 5516.99, Revised Code, unconstitutional in their application to the seven Ghaster billboards which are specifically involved in this case.

In considering that contention, it is necessary to consider, first, whether those statutory provisions are valid and constitutional in their general application. In its assignments of error, statement of questions of law, briefs and argument, Ghaster contends that they are not.

Ghaster contends, first, that these statutes take private property without compensation in violation of Sections 1, 16 and 19 of Article I of the Ohio Constitution and Amendment XIV of the federal Constitution.

In support of this contention, it is argued that property, within the meaning of the foregoing constitutional provisions, includes the right to use land and that, therefore, the deprivation of the right to use land, by the prohibition in these statutes against its use for billboard purposes, is a taking in part of property.

This line of argument is fallacious because it is necessarily based upon the assumption that the ownership of land includes an unrestricted right to use such land for any purpose for which it is useable.

This fallacy is demonstrated by the words of Section 19 of Article I of the Ohio Constitution that '[p]rivate property shall ever be held inviolate, but subservient to the public welfare.'

The authorities relied upon by Ghaster also disclose this fallacy. They all recognize that an owner's right as a user of his land is limited to a 'lawful' or 'legitimate' use. See Terrace v. Thompson, Atty. Genl. (1923), 263 U.S. 197, 44 S.Ct. 215, 68 L.Ed. 255; State of Washington ex rel. Seattle Title Trust Co., Trustee, v. Roberge, Supt. (1928), 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654; and City of Akron v. Chapman (1953), 160 Ohio St. 382, 116 N.E.2d 697, 42 A.L.R.2d 1140.

Obviously,...