State v. Buckley

• Decision Date: 31 December 1968
• Docket Number: No. 68-5,68-5
• Citation: 45 O.O.2d 469,16 Ohio St.2d 128,243 N.E.2d 66
• Parties: , 45 O.O.2d 469 The STATE of Ohio, Appellee, v. BUCKLEY et al., d. b. a. Buckley's Auto Wrecking, Appellants; Saxbe, Attorney General, Appellee, et al.
• Court: Ohio Supreme Court

Page 128

16 Ohio St.2d 128

243 N.E.2d 66, 45 O.O.2d 469

The STATE of Ohio, Appellee, v. BUCKLEY et al., d. b. a. Buckley's Auto Wrecking, Appellants Saxbe, Attorney General, Appellee, et al.

No. 68-5.

Supreme Court of Ohio.

Dec. 31, 1968.

Syllabus by the Court

1. Sections 4737.05 to 4737.99, Revised Code, which require junk yards outside of a municipality to be obscured from the ordinary view of persons passing upon state, county and township roads, are a valid exercise of the police power although they are based upon aesthetic considerations.

2. The statutory requirement, found in Sections 4737.05 and 4737.07, Revised Code, that junk be obscured from the ordinary view of persons passing upon state, county and township roads means that the junk must be entirely hidden from the view of such passers-by, and such requirement is neither vague nor uncertain, nor does it involve an unconstitutional delegation of legislative authority.

3. Legislation must apply alike to all persons within a class, and reasonable grounds must exist for making a distinction between those within and those without a designated class. Within the limits of those restrictive rules, a legislative body has a wide measure of discretion. (Paragraph two of the syllabus of Porter v. City of Oberlin, 1 Ohio St. 143, 205 N.E.2d 363, approved and followed.)

Charles E. and Robert E. Buckley, appellants herein, operate a junk yard (Buckley's Auto Wrecking) in Summit County. On January 30, 1965, the county prosecuting attorney filed an application in the Court of Common Pleas to abate the operation of this yard as a nuisance under Sections 4737.05 to 4737.99, Revised Code, hereinafter referred to as the junk-yard statutes.

The Buckleys cross-petitioned for a declaratory judgment to test the constitutionality of those statutes, and impleaded as new parties the county auditor, the sheriff and the Attorney General of Ohio.

The trial court held that those parts of the junk-yard statutes which define fences, which create a legislative nuisance where there are no fences, and which provide for enforcement are vague, indefinite, and unconstitutional. The court held also that the exemption of scrap processing dealers was unreasonably discriminatory.

Upon appeal, the Court of Appeals found the statutes constitutional and reversed that portion of the judgment of the trial court which held the junk-yard statutes unconstitutional in part. The cause is now before this court as an appeal involving a constitutional question and pursuant to the allowance of Buckleys' motion to certify the record.

James V. Barbuto, Pros. Atty., and William R. Moore, Jr., Akron, for plaintiff-appellee.

Wyner & Wyner and Milton H. Wyner, Cleveland, for appellants.

William B. Saxbe, Atty. Gen., and Robert D. Macklin, Columbus, for defendant-appellee.

PAUL W. BROWN, Judge.

The relevant provisions of Sections 4737.05 to 4737.99, Revised Code, provide as follows:

Section 4737.05. 'As used in Sections 4737.05 to 4737.11, inclusive, of the Revised Code:

'* * *

'(B) 'Junk yard' means an establishment * * * other than an establishment having facilities for processing iron, steel, or non-ferrous scrap and whose principal product is scrap iron and steel or non-ferrous scrap for sale for remelting purposes, which is maintained or operated for the purpose of storing, keeping, buying, or selling junk, or for the maintenance or operation of an automobile graveyard * * *.

'(C) 'Fence' means an enclosure at least six feet in height, constructed of non-transparent material, and maintained so as to obscure the junk in the enclosure from the ordinary view of persons passing upon the state, county, and township roads in this state.'

Section 4737.07. 'No person shall operate and maintain a junk yard outside of a municipality without first obtaining a license to do so from the county auditor * * *. Any person operating or maintaining a junk yard within one thousand feet of a state or county road or within three hundred feet of a township road, prior to January 1, 1964, shall have one year thereafter to erect the required fence if such junk yard is not obscured by natural objects. * * *

'* * *

'Any license * * * issued under this section may be revoked by the county auditor * * * after reasonable notice and opportunity to be heard, for any violation of sections 4737.01 to 4737.11, inclusive, of the Revised Code * * *.'

Section 4737.10. 'Twice annually the sheriff of each county shall inspect every junk yard that is located within his jurisdiction and for which a license has been issued * * * to obtain information with regard to whether the licensee's business has been and is being conducted in accordance with sections 4737.01 to 4737.11, inclusive, of the Revised Code. The sheriff shall submit a written report of each such examination to the county auditor of the county wherein such junk yard is located.'

Section 4737.11. 'Whenever the prosecuting attorney of any county or the Attorney General is of the opinion that a junk yard is being operated or maintained in violation of any of the provisions of Sections 4737.05 to 4737.11, inclusive, of the Revised Code, he may apply, in the name of the state, to a court of competent jurisdiction, alleging the violation complained of and praying for an injunction or other proper relief. In such a case the court may order such junk yard abated as a nuisance or make such other order as may be proper. * * *'

Section 4737.99. '(A) Whoever violates sections 4737.01 to 4737.11, inclusive, of the Revised Code, shall be fined not less than twenty-five nor more than one thousand dollars and the costs of prosecution.'

The appellants' auto wrecking business has been in operation since 1947. State, county, or township roads run directly beside the yard on three sides. Subsequent to the enactment in 1964 of the junk-yard statutes, the appellants erected a six-foot fence around their entire yard. They thereafter received yearly licenses. The prosecuting attorney brought this action under statutory language requiring junk yards to be operated in accordance with the junk-yard statutes, which statutes authorize action for injunction, or other relief at any time when he is of the opinion that the junk-yard statutes are being violated.

The alleged violation involved both the stacking of junk cars, so that they extended above the six-foot fence and were visible to persons on two of the highways involved, and the placing of junk cars in areas within the enclosure which were not effectively obscured by the fence because one of the highways was elevated above the junk-yard area.

The primary question here is whether aesthetic considerations may support such an exercise of the police power.

In Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E.2d 328, which upheld statutes prohibiting certain types of highway billboards, Chief Justice Taft spoke for the court in deciding that the general welfare of the public includes more than public health, safety and morals, and that in drafting a statute the General Assembly could properly give weight 'to its effect in promoting the comfort, convenience, and peace of mind of those who use the highway by removing annoying intrusions upon that use.' In several other states junk-yard statutes similar to those now before us have been held constitutional, in spite of their obvious foundation on aesthetic considerations. See Jasper v Kuntucky (Ky.), 375 S.W.2d 709, and Farley v. Graney, 146 W.Va. 22, 119 S.E.2d 833. Concepts of police power change with the times, as pointed out by the following language from Euclid, Ohio v. Amber Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 118, 71 L.Ed. 303, 54 A.L.R. 1016:

'* * * Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. * * *'

We think that aesthetic considerations can support these statutes, because interference with the natural aesthetics of the surrounding countryside caused by an unfenced or inadequately fenced junk yard is generally patent and gross, and not merely a matter of taste. Certainly the junk yard here, wherein junk cars are stacked so that they are visible many feet above the top of the fence, is patently offensive, and it cannot be effectively argued in this case that the statutes would be unconstitutional as applied, either because the offensiveness in this fact situation is only a matter of taste of because the surrounding area has no aesthetic value to preserve.

We do not hold that these counter-arguments could not be persuasive on another set of facts. The legislative regulation of nuisance is in some ways analogous to zoning, as pointed out in Euclid v. Amber Realty Co., supra, and the determination in any particular case depends upon the facts of the case. The legislation itself may be constitutional, but its application to a given set of facts may be unconstitutional where the purpose of the act-promotion of the general welfare-would not be furthered, since then there would be no justification...