Old Broadway Corp. v. Backes
Decision Date | 18 January 1990 |
Docket Number | No. 890165,890165 |
Citation | 450 N.W.2d 734 |
Court | North Dakota Supreme Court |
Parties | OLD BROADWAY CORPORATION; Paradiso of Bismarck, Inc.; Select Inns of America, Inc.; Edmond Lefreniere, d/b/a Happy Host Inn; J.E.P. Incorporated; Wold Properties, Inc.; Fagerholt-Jackson, Inc.; and Dakota Bank & Trust Company, Plaintiffs and Appellants, v. Richard J. BACKES as North Dakota State Highway Commissioner, Defendant and Appellee. Civ. |
Vinje Law Office, Lamb, McNair, Larson & Carlson, Ltd., Fargo, and Robert J. Schaefer, Moorhead, Minn., for plaintiffs and appellants; argued by Edmund G. Vinje II, Fargo. Appearance by Robert J. Schaefer.
Robert E. Lane (argued), Asst. Atty. Gen., State Highway Dept., Bismarck, for defendant and appellee.
Thirty-nine advertisers, who leased advertising space on 62 outdoor advertising signs in North Dakota, appealed from a judgment dismissing their request for a writ to prevent the North Dakota Highway Commissioner from removing the signs. We affirm.
These outdoor advertising signs, identified as "interim permitted signs," have been here before in litigation between the Commissioner and the sign owners. Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978), appeal dismissed for lack of substantial federal question, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979) [Newman I ]; Newman Signs, Inc. v. Hjelle, 317 N.W.2d 810 (N.D.1982) [Newman II ]. In Newman I this court held, in part, that the "interim permitted signs" were removable without compensation because the sign owners waived compensation in the interim permits issued by the Commissioner. 1 Newman II reaffirmed that decision as the "law of the case." The Commissioner was authorized to remove "interim permitted signs."
In June 1985 the Commissioner, through his Director of Engineering Services, ordered the sign owners to remove these 62 "interim permitted signs." The advertisers 2 sought a writ of mandamus to require the Commissioner to comply with standards and priorities for removing the signs and, alternatively, a peremptory writ of prohibition to prevent the Commissioner from removing the signs. The advertisers alleged that the Commissioner failed to categorize and prioritize the signs for removal pursuant to Section IX of the Right of Way Manual of the North Dakota State Highway Department 3 and regulations promulgated under the Federal Highway Beautification Act. 4 The advertisers claimed that the Commissioner arbitrarily categorized the signs as "illegal," the first priority for removal. The advertisers asserted that the signs should have been placed in other and lower priority categories for removal and that, therefore, the Commissioner should not have ordered removal of these signs until all of the higher priority signs had been removed. The advertisers alleged that the Commissioner's actions violated their constitutional right to free exercise of commercial speech.
After trial, the trial court concluded that the advertisers' status was the same as the sign owners and that the advertisers could not succeed on their free speech argument because Newman I rejected the same argument by the sign owners. The trial court additionally concluded that the interim permitted signs were illegal and that the Commissioner's procedures to identify the signs as illegal and to designate them for removal complied with due process. The advertisers appealed.
The statutes for issuing a writ of mandamus [NDCC ch. 32-34] and for issuing a writ of prohibition [NDCC ch. 32-35] frame our analysis. A writ of mandamus may be issued when the petitioner has a clear legal right to the performance of the act and when there is not a plain, speedy, and adequate remedy in the ordinary course of law. NDCC 32-34-01; 32-34-02; McCallum v. City Comm'rs, 393 N.W.2d 263 (N.D.1986); Fargo Education Ass'n v. Paulsen, 239 N.W.2d 842 (N.D.1976). A writ of prohibition is an extraordinary remedy to prevent an inferior body or tribunal from acting without or in excess of jurisdiction when there is not a plain, speedy, and adequate remedy in the ordinary course of law. NDCC 32-35-01; 32-35-02; Schneider v. Seaworth, 376 N.W.2d 49 (N.D.1985); Schneider v. Ewing, 310 N.W.2d 581 (N.D.1981). Since issuance of either writ is discretionary, the denial of a writ will not be overturned on appeal absent an abuse of discretion. Schneider v. Seaworth, supra; Fargo Education Ass'n v. Paulsen, supra. A court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably. Schneider v. Seaworth, supra. In this case, we affirm because we are not convinced that the trial court abused its discretion.
On appeal, the advertisers contended that the trial court misapplied the law on the exercise of the constitutional right of commercial free speech; that the court erred in holding that the interim permitted signs were illegal; and that the court erred in determining that the Commissioner complied with due process.
As a general rule, a lessee does not acquire any greater rights in property than those held by the lessor, and a lessee takes subject to any claim enforceable against the lessor. Kleven v. Brunner, 229 Neb. 883, 429 N.W.2d 384 (1988); Schrunk v. Andres, 221 Minn. 465, 22 N.W.2d 548 (1946); see 49 Am.Jur.2d, Landlord and Tenant, Sec. 233 (1970). The advertisers merely leased advertising space on the signs from the owners. Therefore, the advertisers do not have any greater rights than the owners of the signs.
The advertisers' constitutional claim is controlled by Newman I in which we held that removal of the signs would not violate the sign owners' First Amendment guarantee of freedom of commercial speech. See also City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). We are not persuaded that any different analysis than that used in Newman I is appropriate for the advertisers' claim. We therefore conclude that the Commissioner's actions did not violate the advertisers' freedom of commercial speech.
Newman I, supra, 268 N.W.2d at 746. In Newman I this court held that the language of the interim permits meant that the signs could be removed without compensation. See also Newman II. The issue here is when those signs can be removed.
Although the original permits for these interim permitted signs are not in this record, the permits are in the records of Newman I and II. We take judicial notice of the language of the permits from those records. See Patten v. Green, 397 N.W.2d 458 (N.D.1986). See also NDREv 201 and its Explanatory Note. The language of the interim permits described the Commissioner's right to order the signs removed:
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