State Dept. of Roads v. Popco, Inc.

• Decision Date: 03 March 1995
• Docket Number: No. S-93-184,S-93-184
• Citation: 528 N.W.2d 281,247 Neb. 440
• Parties: STATE of Nebraska, DEPARTMENT OF ROADS, Appellee, v. POPCO, INC., Sign Owner and Landowner, Appellant.
• Court: Nebraska Supreme Court

Page 281

528 N.W.2d 281

247 Neb. 440

STATE of Nebraska, DEPARTMENT OF ROADS, Appellee, v. POPCO, INC., Sign Owner and Landowner, Appellant.

No. S-93-184.

Supreme Court of Nebraska.

March 3, 1995.

Syllabus by the Court

1. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity.

2. Constitutional Law: Statutes: Ordinances: Appeal and Error. The constitutionality of a statute or ordinance is a question of law; accordingly, the Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court.

3. Constitutional Law: Statutes: Proof. In addressing a constitutional challenge to a statute, the issue is whether the Tim B. Streff and J. Patrick Green, of Wintroub, Rinden & Sens, Omaha, for appellant.

statute impinges on some fundamental constitutional right or whether the statute creates a suspect classification. When a fundamental right or suspect classification is not involved in legislation, the legislative act is a valid exercise of the police power if the act is rationally related to a legitimate governmental purpose.

Don Stenberg, Atty. Gen., and K. Osi Onyekwuluje, Lincoln, for appellee.

Before HASTINGS, C.J., and WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.

WRIGHT, Justice.

Popco, Inc., appeals the judgment of the Douglas County District Court which ordered Popco to remove the contents (the two advertisements) of a billboard from its property and enjoined Popco from maintaining on its property any sign which violates state law and the regulations of the Nebraska Department of Roads.

SCOPE OF REVIEW

The burden of establishing the unconstitutionality of a statute is on the one attacking its validity. State ex rel. Stenberg v. Douglas Racing Corp., 246 Neb. 901, 524 N.W.2d 61 (1994); Henry v. Rockey, 246 Neb. 398, 518 N.W.2d 658 (1994).

The constitutionality of a statute or ordinance is a question of law; accordingly, the Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court. Howard v. City of Lincoln, 243 Neb. 5, 497 N.W.2d 53 (1993).

FACTS

In 1980, Popco, Inc., erected a sign within 660 feet of the south side of Interstate 80 at or near mile post 448.5 in Douglas County on land owned by Popco. The Nebraska Department of Roads (State) brought this action, seeking a permanent injunction (1) requiring Popco to remove the sign, which is visible from the Interstate, and (2) enjoining Popco from maintaining a sign which violates state law and the regulations of the Department of Roads.

At the commencement of the action, the sign advertised the soft drink Dr Pepper and Little King sandwich shops. At the time of trial, the sign advertised Dr Pepper and Ideal Pure Water. Popco owns a building that is located on the same tract of land as the sign. The building is leased to a leather-tanning business. A machine on the premises offers soft drinks, including Dr Pepper, but Ideal Pure Water is not available on the premises.

Interstate 80 is designated as a part of the National System of Interstate and Defense Highways and/or federal-aid primary road system of the State of Nebraska. The State claimed in its amended petition that the erection and maintenance of Popco's sign violated the highway laws of the State of Nebraska set forth in Neb.Rev.Stat. § 39-1320.06 (Reissue 1993) and 410 Neb.Admin.Code, ch. 3, § 002 (1983). The State alleged that by refusing to remove the sign, Popco had caused irreparable injury to the welfare and safety of the general public in that the state was subject to loss of a substantial portion of its federal highway funds if the state failed to adequately control advertising along the Interstate. The State also asserted that there was no adequate remedy at law.

Popco alleged in its answer that the State sought to remove Popco's property without just compensation, in violation of the 5th and 14th Amendments to the U.S. Constitution and in violation of article I, § 21, of the Nebraska Constitution; that § 39-1320.06 is unconstitutionally vague; and that the prohibition of off-premises advertising is not reasonably related to any valid governmental objective or consideration falling within the police power of the State of Nebraska. Popco contended that § 39-1320.06 and the rules and regulations promulgated thereunder violate the Nebraska Constitution and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. In the trial court, Popco made no direct assertion that Following a trial on the issues, the district court for Douglas County found that the constitutional issues raised as affirmative defenses by Popco had no merit and, relying upon State v. Mayhew Products Corp., 204 Neb. 266, 281 N.W.2d 783 (1979), found that the statutes governing highway advertising signs were constitutional. The court ordered Popco to remove the contents (the two advertisements) of the billboard within 60 days and enjoined Popco from maintaining any sign on the property which was contrary to the statutes of the State of Nebraska and the rules and regulations of the Department of Roads. Popco appeals; we affirm.

the statute in question violates article III, § 18, of the Nebraska Constitution.

ASSIGNMENT OF ERROR

Popco's sole assignment of error is that the district court erred in failing to find § 39-1320.06 in violation of article III, § 18, of the Nebraska Constitution.

ANALYSIS

We have stated that in addressing a constitutional challenge to a statute, the issue is whether the statute impinges on some fundamental constitutional right or whether the statute creates a suspect classification. Robotham v. State, 241 Neb. 379, 488 N.W.2d 533 (1992). "When a fundamental right or suspect classification is not involved in legislation, the legislative act is a valid exercise of the police power if the act is rationally related to a legitimate governmental purpose." State v. Two IGT Video Poker Games, 237 Neb. 145, 149, 465 N.W.2d 453, 458 (1991). Accord Robotham v. State, supra. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity. State ex rel. Stenberg v. Douglas Racing Corp., 246 Neb. 901, 524 N.W.2d 61 (1994); Henry v. Rockey, 246 Neb. 398, 518 N.W.2d 658 (1994).

In this case, we focus on whether § 39-1320.06 creates a suspect classification. Popco's argument on appeal is apparently based upon the theory that statutes prohibiting off-premises signs are unconstitutional because they create two classes of advertising, in violation of the constitutional guarantee of equal protection. Article III, § 18, of the Nebraska Constitution provides that the Legislature shall not pass local or special laws "[g]ranting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise...." This constitutional provision "concerns itself with disparate treatment in much the same manner as does the language of [the 14th Amendment to the U.S. Constitution], which prohibits a state from making or enforcing any law which denies any person within its jurisdiction 'the equal protection of the laws.' " Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 849, 443 N.W.2d 566, 570 (1989).

A legislative act can violate Neb.Const. art. III, § 18, as special legislation in one of two ways: (1) by creating a totally arbitrary and unreasonable method of classification, or (2) by creating a permanently closed class. Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991). A legislative classification, in order to be valid, must be based upon some reason of public policy--some substantial difference of situation or circumstances--that would naturally suggest the justice or expediency of diverse legislation with respect to objects to be classified. Id. Classification is proper if the special class has some reasonable distinction from other subjects of like general character, which distinction bears some reasonable relation to the legitimate objectives and purposes of the legislation. Id.

Popco argues that the primary difference between on-premises signs and off-premises signs is their impact on federal highway funding. The statutes governing highway advertising signs were enacted in order to obtain financial incentives provided by the federal Highway Beautification Act of 1965. State v. Mayhew Products Corp., 204 Neb. 266, 281 N.W.2d 783 (1979). One of the "state highway purposes" is "[t]he control of outdoor advertising which is visible from...