State ex rel. State Highway Commission v. Carlton
| Decision Date | 27 March 1970 |
| Docket Number | No. 8893,8893 |
| Citation | 453 S.W.2d 642 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator-Appellant, v. Paul CARLTON and Mildred Carlton d/b/a Carlton Motor & Salvage, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Robert L. Hyder, Jefferson City, Terry C. Allen, Sikeston, for relator-appellant.
Briney, Welborn & Spain, Bloomfield, for defendants-respondents.
This is a junkyard case. On September 10, 1968, relator State Highway Commission of Missouri (the Commission) instituted this action in which it sought to enjoin defendants, Paul Carlton and Mildred Carlton, from operating and maintaining a junkyard on a 12-acre tract near Dexter in Stoddard County, Missouri, allegedly in violation of Senate Bill 9, Second Extra Session, 73rd General Assembly. Laws 1965, 2nd Ex.Sess., pp. 905--907, now codified as §§ 226.650 to 226.720, incl., RSMo 1967 Supp., V.A.M.S. 1 From the judgment and decree finding the issues for defendants and dismissing relator's petition, the Commission appeals.
Relator alleged in its petition 'that the said junkyard was not lawfully in existence on the effective date of Senate Bill 9 (August 4, 1966) . . . in that it was within 200 feet of the right-of-way of a state road, State Route 25, and a county road, and was not screened as required by law, and was, therefore, in violation of § 229,180 RSMo 1959'; 2 that defendants' operation and maintenance of their junkyard 'is in violation of Senate Bill 9 3 . . . in that it is within 1,000 feet of the nearest edge of the right-of-way of a primary highway, State Route 25, and is not licensed'; 4 and that defendants 'have failed to correct the violation of law within 60 days after having been given notice and continue unlawfully to operate or maintain said junkyard.' 5
Defendants' 12-acre tract (on a portion of which, in extent not fixed in the record, their junkyard is maintained) lies between two roads both of which run in a general north-south direction, to wit, on the west side of the junkyard State Highway Route 25 and on the east side an old gravel road with 'one set of ruts' referred to in the legal description of defendants' tract as 'the Old Bloomfield and Dexter Public Road' (hereinafter called the old road). In response to the Commission's interrogatories, defendants frankly admitted that wrecked or dismanted automobiles, or parts thereof, were kept or stored on their tract within 200 feet of the east right-of-way line of Route 25 and also within 200 feet of the old road; but they vigorously asserted that their junkyard was junkyard (frequently referred to as the junkyard) was 'lawfully in existence on August 4, 1966' or, otherwise stated, whether or not the junkyard was then in compliance with § 229.180 () of the former junkyard act.
There has been no suggestion of record or aliunde that prior to August 4, 1966, any complaint of noncompliance with § 229.180 had been presented to or lodged against defendants; but in this action the Commission charges such noncompliance in two respects, i.e., (1) that the junkyard was within 200 feet of the east right-of-way line of Route 25 and not properly screened, and (2) that the junkyard was within 200 feet of the old road and not properly screened. Since practically all of the testimony upon trial was directed to the latter charge, we treat of it first.
In the 1920s, the old road had been an integral part of 'the only gravel road' between Dexter and Bloomfield, the county seat, but it had lost that proud status many years prior to August 4, 1966. On that date, the old road was only a dead-end serpentine way no more than one mile in length which at its southern end diverged from the east side of Route 25 and ran in a northerly direction through Dexter Memorial Park Cemetery, through a narrow gap in an east-west fence on the north side of the cemetery, and along the east side of defendants' 12-acre tract to the road's northern terminus at the south right-of-way line of U.S. Highway 60, a four-lane east-west turnpike. There were only two houses on the old road north of the cemetery, both being on the east side of that road with one north and the other 'just a little bit south' of defendants' tract. One of the Commission's witnesses testified that the house north of defendants' tract had not been occupied for seven or eight years prior to trial, while another witness for the Commission graphically described it as 'not really what you'd call a house, nobody lives up there, just an old barn of a thing where they kept some stock.' The unidentified owner of that tract was said to have 'sort of a pig farm up there and a few ducks' to which he would attend by driving over the old road 'twice a day up there and back.' However, for the purpose of showing that the old road was a 'county road' within the contemplation of § 229.180 of the former junkyard act, the Commission called several witnesses who testified that the old road and been and was being maintained by Liberty Township; and, without detailing that evidence or further commenting upon the sparse use of that road, we accept, for the purposes of this opinion, the Commission's conclusion that it was a 'county road.'
It being admitted that the junkyard extended within 200 feet of the old road, the requirement of § 229.180 was that it be 'screened from said road by tight board or other screen fence not less than ten feet high, or of sufficient height to screen the wrecked or disabled automobiles or junk kept therein from the view of persons using such road on foot or in vehicles in the ordinary manner . . ..' (All emphasis herein is ours.) There was no 'tight board' fence along the east side (or, for that matter, along any other side) of the junkyard; but defendants' position, adequately supported by their evidence, was that on August 4, 1966, the trees, bushes, shrubs and rank undergrowth along the west side of the old road and in the fencerow afforded and constituted an effective 'screen fence,' impenetrable to the view of those using the old road 'on foot or in vehicles in the ordinary manner.' The Commission's contentions were (1) that screening by trees, bushes, shrubs and undergrowth was not 'permissible screening' under § 229.180 of the former junkyard act, 6 and (2) that, even if such screening was permissible under § 229.180, 'it did not fully render (defendants') junk not visible from (sic) persons using the old road on foot or in vehicles.'
The overriding objective of all statutory construction is to ascertain and give effect to the legislative intention (see cases collated in 26 West's Missouri Digest, Statutes, k181(1)); and, as aids in that quest, the courts frequently make use of various auxiliary rules. One of the chief of these is that the court must look to, and never lose sight of, the object sought to be accomplished and the purpose to be served. 7 The very language of § 229.180 leaves no room for doubt but that the object and purpose of that legislative enactment were simply that junkyards within two hundred feet of any state or county road be screened, i.e., concealed, 'from the view of persons using such road on foot or in vehicles in the ordinary manner.' To rule, as the Commission supplicates, that screening by the trees, bushes, shrubs and rank undergrowth along the west side of the old road and in the fencerow was not 'permissible screening' under § 229.180 would work a foolish and senseless result in flagrant disregard of another, oft-invoked auxiliary rule, namely, that the law favors a statutory construction harmonizing with reason and tending to avoid unjust, unreasonable or absurd results; 8 and we decline to honor the Commission's request that we so hold. See Deimeke v. State Highway Commission, Mo., 444 S.W.2d 480, in which an attack upon the constitutionality of the present junkyard act was denied but the finding of the trial court that the plaintiff junkyard operator did not have 'a lawful existing nonconforming use' on August 4, 1966, the effective date of the act, was disapproved because 'the front of the (junkyard) was completely screened by buildings . . . one side was screened for a distance of two hundred feet by a ten-foot metal fence, and the other was effectively screened for a distance of one thousand feet by a multiflora rose hedge which was more than ten feet in height.' 444 S.W.2d at 485(5).
The Commission's assertion that, if the screening by trees, bushes, shrubs and rank undergrowth was 'permissible' under Section 229.180, 'it did not fully render (defendants') junk not visible from (sic) persons using the old road on foot or in vehicles,' is addressed to the evidence. It is true that the Commission adduced evidence tending to support the above-quoted assertion; but the force and effect of that evidence undoubtedly were weakened (a) by the fact that the Commission's photographic exhibits (upon which it leaned heavily) were taken on July 10, 1967, and October 19, 1968, after employees of Liberty Township admittedly had done considerable 'tree work' and clearing along the west side of the old road 'sometime in 1966' (what motivated that work and whether it was done before or after August 4, 1966, the effective date of the present junkyard act, were questions suggested but left unsettled by the Commission's evidence), and (b) by the circumstance that most of those photographs showing the east side of the junkyard adjoining the old road were taken from points just outside the wire fence along that side of the junkyard and near the west right-of-way line of the old road and thus did not necessarily...
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