State ex rel. State Highway Commission v. Heil

• Decision Date: 18 March 1980
• Docket Number: No. 40459,40459
• Citation: State ex rel. State Highway Commission v. Heil, 597 S.W.2d 257 (Mo. App. 1980)
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant-Plaintiff, v. Don HEIL, Anton H. and Elizabeth H. Ritter, Respondents-Defendants.
• Court: Missouri Court of Appeals

Page 257

597 S.W.2d 257

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant-Plaintiff, v. Don HEIL, Anton H. and Elizabeth H. Ritter, Respondents-Defendants.

No. 40459.

Missouri Court of Appeals, Eastern District, Division Two.

March 18, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 18, 1980.

Application to Transfer Denied May 13, 1980.

Dennis J. Redel, Legal Division, State Highway Commission, Jefferson City, for appellant-plaintiff.

David G. Beeson, Buerkle, Lowes & Beeson, Jackson, for respondents-defendants.

STEWART, Judge.

State Highway Commission of Missouri (Commission) petitioned the Circuit Court for mandatory injunction that would require defendants to remove a sign along Interstate Highway 55. The Circuit Court rendered judgment for defendants.

We affirm.

Essential to our consideration of this case is what is known as the Billboard Act §§ 226.500-226.600 RSMo.1969, as amended, (Supp.1973, 1976). This act has as its purpose the regulation of signs along interstate and primary highway systems. Without going into great detail, the act, among other things, prohibits the erection and maintenance of outdoor advertising signs which would be within 660 feet of the nearest edge of the highway right of way and visible from the main traveled way of such highways with certain exceptions. Among the exceptions is "(o)utdoor advertising located in unzoned commercial or industrial areas as defined and determined pursuant to sections 226.500 to 226.600." § 226.520(4) RSMo.1976.

Unzoned commercial and industrial land is defined in § 226.540(4) RSMo.1976 as:

"That area not zoned by state or local law or ordinance and on which there is located one or more permanent structures used for a commercial business or industrial activity or on which a commercial or industrial activity is actually conducted whether or not a permanent structure is located thereon, together with the area along the highway extending outwardly six hundred feet from and beyond the edge of such activity." § 226.540(4) RSMo.1976.

In other words outdoor advertising is permissible within 600 feet of a commercial or industrial activity provided a permit is obtained from the Commission in accordance with the act. See National Advertising Co. v. State Highway Commission, 549 S.W.2d 536 (Mo.App.1977). Provisions are also made for enforcement of the act as discussed hereafter.

Defendant Ritter, as the owner of a farm, leased the side of his barn to defendant Heil who had an advertising sign painted on the barn. The Commission determined that the sign was in violation of the act and sent defendant Ritter and defendant Heil notice to remove the sign. Neither of them sought administrative review nor did they seek the alternative remedy of judicial review of the Commission's determination as provided in § 226.580-3 RSMo.1976. ¹ Defendant Heil, however, filed an application for a permit prior to the time this case was tried. Under the circumstances the statute authorizes the Commission to remove the sign, in this instance by painting it out, at the owner's expense. Defendant Anton Ritter refused to allow the Commission to remove the sign at Ritter's expense and Defendant Heil refused to remove the sign.

On October 20, 1976, about seven months after the time for obtaining a review of the Commission's determination had passed, the Commission filed this action. The petition alleges that the sign on the barn was in violation of the Billboard Act in that it was within 660 feet of Commission's right of way and had not been issued a valid permit, and that it did not come within any exception set out in the statute. Commission also alleges that the defendants had been given notification to remove the sign, that they did not seek review of Commission determination, and that they did not remove or permit removal of the sign.

Our review of this case depends upon the nature of this action, which in turn also raises the question of the jurisdiction of the Circuit Court to entertain the action. The manner in which this case was tried presents us with a multitude of problems in making these determinations. Commission urges as an alternative point that this is an action to enforce the administrative determination of the Commission.

The parties stipulated that there was only one factual issue to be tried. As stated in the trial court "(i)ts been stipulated that the only question of fact, within the meaning of the statute, is whether or not there is a commercial activity within 600 feet of the existing sign adjacent to Interstate 55." It is conceded that at the time the administrative determination was made, in 1975 and 1976, the sign was in violation of the statute. In 1977 the Ritters started selling gravel upon their property and sales were being made up to the time of trial. The case was tried by the parties upon the facts as they existed March 7, 1978, the date of trial. Even Commission states in the first portion of its argument that the case is to be reviewed as cases in equity in accordance with Rule 73.01-3. Counsel for Commission, having in mind the fact that an application for a permit had been sought with no action taken by Commission, also stated:

"I feel that the highway commission in this case could take the position that the sign was illegally erected anyway, and that we would require it be removed and then go through the proper procedures. As a practical matter we're not taking that position because it would be frivolous to have them tear it down and build it right back up again."

As can be seen the parties did not try this case as an action to enforce the original determination of the Commission that the sign was unlawful. The theory upon which the case was tried treats the action as an independent de novo action for a mandatory injunction. We believe that such a proceeding can be utilized because the primary purpose of the Billboard Act is to see that unlawful signs are removed. In making this determination we are mindful of Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099, 1103 (banc 1912) in which it is said that "a court of chancery is not a medium for the enforcement of the criminal law, hence it scans closely transactions having that aspect before entertaining jurisdiction." The purpose of the statute under consideration here is "(t)o promote highway safety, to promote convenience and enjoyment of highway travel, and to preserve the natural scenic beauty of highways and adjacent areas." § 226.500 RSMo.1969. The statute partakes of a remedial rather than a penal nature even though violation of the statute may be prosecuted as a misdemeanor. § 226.600 RSMo.1969. Considering the statutory purpose and the fact that Commission had experienced difficulty in having the sign removed we believe that the action partakes of the nature of an action to abate a public nuisance. City of St. Louis v. Friedman, 358 Mo. 681, 216 S.W.2d 475 (1949). We conclude that the action was an independent action brought to enforce alleged violations of the Billboard Act and that the trial court had jurisdiction to hear the cause. We review this case as an equitable action. The guide lines for our review have been so often stated that they need not be repeated here. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Defendants have moved to dismiss the appeal because of defects in Commission's brief. While we cannot commend Commission on its brief, the first Point Relied On sufficiently directs us to the essential issues to be raised...