Moore v. Ward

• Decision Date: 10 April 1964
• Citation: 377 S.W.2d 881
• Parties: Lee MOORE et al., Appellants, v. Henry WARD, Commissioner of Highways of Kentucky, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 881

377 S.W.2d 881

Lee MOORE et al., Appellants, v. Henry WARD, Commissioner of Highways of Kentucky, et al., Appellees.

Court of Appeals of Kentucky.

April 10, 1964.

Marshall, Cochran, Heyburn & Wells, James W. Hendricks, Louisville, William A. Young, Hazelrigg & Cox, Frankfort, for appellants.

Stanley B. Mayer, Louisville, for amicus curiae, Mayer, Cooper & Kiel, Louisville, of counsel.

John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., James J. Shannon, Jr., Asst. Director of Law, Dept. of Highways, Frankfort, Oldham Clarke, Sp. Counsel, Dept. of Highways, Louisville, for appellees.

CLAY, Commissioner.

This suit was brought to test the constitutionality of the 'Billboard Act' (KRS 177.830 to 177.990, enacted in 1960). Appellants represent three classes of property owners who have an interest in the maintenance of advertising signs in areas near public highways. The statute was upheld by the Chancellor.

In substance the Act prohibits the erection of any 'advertising device' on private property within 660 feet of the right of way line of any interstate highway, limited access highway, or turnpike. Excepted are advertising signs which identify businesses conducted on the premises, or which carry information authorized by law to be posted, and other types. The erection of new signs after March 1, 1960 is forbidden, but those existing on that date may be maintained until March 1, 1965. The offending devices are declared to be a public nuisance, may be summarily removed by public authorities, and criminal penalties are imposed for violations.

Appellants first raise what is in substance a procedural point. They contend they should have been permitted to introduce evidence to establish that advertising signs are not inimical to traffic safety. The purpose would be to show that the legislature was laboring under a misconception when it enacted the law as a safety measure. There are several reasons why a trial of this issue would be improper and unnecessary in this case.

As pointed out in appellants' brief, the test of constitutionality is whether the Act in question is unreasonable or arbitrary. (Section 2 of the Constitution of Kentucky.) The issue is one of law. In passing upon the constitutionality of a statute the court takes judicial notice of matters of common knowledge. 11 Am.Jur., Constitutional Law, section 145 (page 825). Kohler v. Benckart, Ky., 252 S.W.2d 854. The court may not examine the validity of reasons which impelled the legislature to act, nor may it reappraise those reasons. Berman v. Parker, et al., 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27. The question is not what influenced the legislation, but whether the emergent law is reasonably within the scope of a legitimate public purpose. See 11 Am.Jur., Constitutional Law, sections 141, 142 (pages 818, 820).

In some cases evidence has been accepted to identify the subject matter of legislation or to determine its application to a particular fact situation, but appellants have not cited us to any case requiring a court to hear evidence on the validity of a particular premise which may have induced legislative action. There is authority to the effect that courts cannot consider evidence on a question of this nature. 11 Am.Jur., Constitutional Law, section 145 (page 825). Legislative motive, understanding or inducement are not on trial, and it is not the function of the courts to reappraise legislative reasons or to weigh evidence with respect thereto. Berman v. Parker, et al., 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27; Railway Express Agency v. People of the State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533.

Even assuming appellants could produce substantial evidence that billboard signs do not adversely affect traffic safety, this record indicates, and our common knowledge suggests, that the question involves so many intangible factors as to make debatable the issue of what the facts establish. Where this is so, it is not within the province of courts to hold a statute invalid by reaching a conclusion contrary to that of the legislature. Radice v. People of the State of New York, 264 U.S. 292, 44 S.Ct. 325, 68 L.Ed. 690.

It further may be observed that evidence such as appellants wish to introduce could not be a determining factor. Assuming (what it does not purport to do) that it would establish the statute was 'manifestly unreasonable and oppressive,' ¹ or that the apparent relationship of the law to a traffic problem was 'palpably false', ² then such proof would be unnecessary. Anything so manifest or palpable could doubtless be discerned by the court without the necessity of evidence.

Finally, appellants' position on this point is unavailing because the traffic safety problem was only one of many significant public welfare considerations which doubtless influenced the legislature to act. As recited in the Act itself, there are such matters as 'convenience and enjoyment of public travel,' 'the free flow of interstate commerce', and 'the protection of the public investment in the system of interstate and defense highways within the Commonwealth.' In addition, there are such matters as the elimination of 'distracting influences,' and the 'enhancement of natural scenic beauty'. ³

It is peculiarly within the province of the legislature to assimilate, consider, and weigh all the factors which inhere in the concept of public welfare. When the courts repeatedly assert that they have no authority to challenge the wisdom of a statute, ⁴ it is a recognition that the legislature may within extremely broad limits determine its 'own standard of public welfare'. Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469. It is therefore evident that appellants' proof on this issue of fact, even if it chipped a stone, could not destroy the mosaic of public welfare. Such method of attack upon the statute must fail.

It is next contended that by the enactment of one section of this statute, and acting pursuant thereto, the Commonwealth has bartered away its sovereign police power. This rather circuitous argument is based on KRS 177.890, which authorizes the Commissioner of Highways to enter into an agreement with the United States Secretary of Commerce, and the actual agreement made pursuant thereto. Appellants' brief asserts the Commonwealth has covenanted that it will regulate outdoor advertising in areas adjacent to interstate highways in accordance with national standards promulgated by the United States Secretary of Commerce, in return for which the Commonwealth will receive federal subsidies.

The contention is that by virtue of this agreement the Commonwealth has somehow relinquished to the federal government the exercise of the state police power. This obviously is not so. The federal standards and policies are not laws of this Commonwealth. The law under consideration is the Act enacted by the State Legislature. There is nothing evil or illegal in conforming state laws to national policy (or policies of other states). As a matter of fact, the existence of a national policy in this field is a persuasive consideration in determining whether the public welfare is involved.

The state law must stand on its own feet. If the federal standards with which the legislature conforms (or agrees to conform) do not bear a reasonable relationship to the public welfare, they would not validate an invalid act. Conversely the acceptance of those standards by the legislature, acting within the scope of its own power, could not possibly make a valid law invalid. The legislative process constantly involves the acceptance or rejection of policies followed in other jurisdictions. National policy may very well be sound state policy.

It is suggested that the acceptance of a subsidy by the state as consideration for the agreement establishes that the Commonwealth has bartered away its police power. The conclusion does not follow the premise. Assuming the subsidy was one of the incentives to the enactment of this law, this does not affect its validity. The courts are concerned with the product, not the motives which produced it. Louisville and Jefferson Co. M.S.D. v. Joseph E. Seagram & S., 307 Ky. 413, 211 S.W.2d 122, 4 A.L.R.2d 588; Adams v. City of Richmond, Ky., 340 S.W.2d 204; People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272.

The final answer to appellants' argument on this point is that neither the provision in the statute before us nor the alleged agreement entered into relinquishes one iota of police power to the federal government. Had it subjected appellants to federal laws in this field, it would not necessarily have been invalid for that reason. Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W. 2d 584. But we are not confronted with such a debatable situation. There is nothing in the Act or the agreement which delegates power. Appellants are subjected only to the police power exercised by the Kentucky Legislature, not that of the federal government. We must test this statute by determining whether it now impairs appellants' constitutional rights, not by what induced or conditioned its passage or what may result from future revision.

We now reach the basic objection that the Act is an excessive exercise of police power arbitrarily depriving appellants of vested property rights. The argument is that the public interest served is so grossly disproportionate to the injury suffered by appellants that there was no reasonable relationship between its purpose and its effect. The appellants have presented this contention somewhat in the form of 'balancing the equities', which, as a practical matter, seems a proper method of approach. ⁵ Before pursuing it, we shall dispose of three incidental issues.

The argument that this law results in the taking of property 'without due process of law' ⁶ is of no independent significance. Almost inevitably the exercise of...