State v. Kievman

• Decision Date: 11 April 1933
• Citation: 116 Conn. 458,165 A. 601
• Court: Connecticut Supreme Court
• Parties: STATE v. KIEVMAN.

165 A. 601

116 Conn. 458

STATE v. KIEVMAN.

Supreme Court of Errors of Connecticut.

April 11, 1933

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Information charging Samuel Kievman with establishing, operating, and maintaining a motor vehicle junk yard or motor vehicle junk business without having procured a certificate of approval and license therefor, brought to the Court of Common Pleas and tried to the court. Judgment of guilty, and appeal by defendant.

Error and cause remanded with directions.

Joseph H. Thalberg and David S. Korn, both of New Haven, for appellant.

Edwin S. Pickett, Pros. Atty., of New Haven, for the State.

Ernest L. Averill, Deputy Atty. Gen., and H. Roger Jones, Asst Atty. Gen., and Warren B. Burrows, Atty. Gen., as amicus curiæ .

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HINMAN, Justice.

By demurrer, which was overruled, and on the trial the defendant asserted that the statute upon which he was prosecuted violated his rights under the Federal and state Constitutions, and his appeal presents the same contentions. The statutory provisions to which the information in this case directly relates are contained in chapter 171, Cum. Supp. 1931. Section 453a defines motor vehicle junk business or motor vehicle junk yard as including " any business and any place of storage or deposit *** which displays, or in or upon which there are displayed, to view from a public highway, two or more unregistered motor vehicles which, in the opinion of the commissioner of motor vehicles or his representative are unfit for reconditioning for use on the public highways, or used parts of motor vehicles or old iron, metal, glass, paper, cordage or other waste or discarded or second hand material which has been a part, or intended to be a part, of any motor vehicle, the sum of which parts or material shall, in the opinion of said commissioner or his representative, be equal in bulk to two or more motor vehicles." Section 456a provides that no such yard or business shall be established or maintained unless a certificate of approval has been procured from the authorized local officials and a license obtained from the commissioner of motor vehicles. Section 456a requires application for such certificate of approval and hearing thereon, on prescribed notice by mail to the applicant and the motor vehicle commissioner and by publication, and provides that the certificate shall not issue unless it be found that " no unreasonable depreciation of surroundings or adjacent property would ensue from the establishing, maintaining or operating of such motor vehicle junk yard or business and that the interests of the municipality require the establishing, operating or maintaining of such yard or business at the location designated. Said local officials, commission or board, in considering such application, shall take into account the nature and development of surrounding property; the proximity of churches, schools, hospitals, public buildings or other places of public gathering; the sufficiency in number of other such yards or businesses in the vicinity; the health, safety and general welfare of the public and the suitability of the applicant to establish, maintain or operate such yard or business and to receive a license therefor. Each applicant for such certificate of approval shall pay a fee of twenty-five dollars, together with the costs of the publication of such notice and the reasonable expenses of such hearing, to the treasurer of such municipality." Quotations from section 458a concerning issuance of license by the commissioner of motor vehicles and section 460a concerning appeal appear in a footnote.^[1] Section 461a provides a penalty for establishing, operating, or maintaining such junk yard or business without procuring a certificate of approval and holding a license therefor, and in addition, that application may be brought to enjoin operation or maintenance of such a yard or business and abate the same as a public nuisance.

The chapter (171) in which these provisions are contained also includes (section 454a) authority to municipalities to enact ordinances or by-laws creating restricted districts within which such yards or businesses shall not be operated or maintained, and (section 457a) requires the commissioner of motor vehicles to examine the location of any yard adjacent to a trunk line highway and authorizes him to make reasonable regulations or impose essential conditions upon the establishment, operation, or maintenance of such yard. As the defendant's yard is not located in a restricted district or adjoining such a highway, these provisions are not involved in the present case and are so separable that their constitutional validity does not affect that of the provisions now under attack, and it need not be and is not considered. Beach v. Bradstreet, 85 Conn. 344, 352, 82 A. 1030, Ann.Cas. 1913B, 946; Underwood Typewriter Co. v. Chamberlain, 92 Conn. 199, 205, 102 A. 600.

The main question presented is whether the statutory provisions upon which the prosecution is based are within the bounds of legitimate exercise by the state of the police power or, on the contrary, as the defendant asserts, are objectionable on constitutional grounds as depriving him, and others similarly situated, of due process of law, equal protection of the law and compensation for property taken for public purposes, impairing vested rights, and delegating arbitrary powers to administrative officials. The primary inquiry is as to the extent of the state's powers. All property is held subject to the right of the state to reasonably regulate its use. While, particularly in crowded urban centers, residents must submit to some annoyances and inconveniences arising from business, industrial, and other activities carried on therein, it is within the police power to regulate occupations or businesses which, owing to their nature, the manner in which they are conducted, or their location, if exercised or conducted without restriction are or may be materially injurious to the public health, morals, comfort, prosperity, or convenience, or otherwise detrimental to the general welfare. " Where the free exercise of one's rights of property is detrimental to the public interest, the state has the right to regulate reasonably such exercise of control under the police power. And that, of course, means without compensation." Windsor v. Whitney, 95 Conn. 357, 368, 369, 111 A. 354, 357, 12 A.L.R. 669; State v. Hillman, 110 Conn. 92, 105, 147 A. 204; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, 54 A.L.R. 1016; Trigg v. Dixon, 96 Ark. 199, 202, 181 S.W. 695, Ann.Cas. 1912B, 509; State ex rel. Carter v. Harper, 182 Wis. 148, 155, 196 N.W. 451, 33 A.L.R. 269; 3 McQuillin, Municipal Corporations (2d Ed.) § § 962, 1043; 12 C.J. 922.

Regulation, reasonably applied, which will promote community development finds support in the police power. State v. Hillman, supra, 110 Conn. 108, 147 A. 294. This power is vested in the Legislature in its broadest terms. " The controlling object is giving to the public that protection from danger which the state is bound to give, and ordinarily the legislature must be the judge of the degree of danger and of the required protection. It may restrict the business by requiring large license fees, or by other protective regulations; and it may restrict the conduct of the business to a limited number of persons, or to persons possessing certain qualifications, to be determined by public officers to whom the administration of the law is given, or in certain cases, to such persons as these public officers may select; thus treating the persons intrusted with the business as quasi public officers, and authorizing their selection on grounds of special fitness. *** The illustrations of such regulations of a business dangerous to the public are familiar, and the cases maintaining the power of the legislature to establish them are too numerous to cite." State v. Conlon, 65 Conn. 478, 484, 33 A. 519, 520, 31 L.R.A. 55, 48 Am.St.Rep. 227. " The Legislature has the power to require a license for the transaction of any business for the purpose of regulating the conduct of it, as the public interest may demand." State v. Darazzo, 97 Conn. 728, 732, 118 A. 81, 82. " A large discretion is necessarily vested in the Legislature to determine, not only what the interests of public convenience and welfare require, but what measures are necessary to secure such interests. Cotter v. Stoeckel, 97 Conn. 239, 244, 116 A. 248; Young v. Lemieux, 79 Conn. 434, 440, 65 A. 436, 600, 20 L.R.A. (N. S.) 160, 129 Am.St.Rep. 193, 8 Ann.Cas. 452. *** It is our duty to sustain an act, unless its invalidity is in our judgment beyond a reasonable doubt." State v. Bassett, 100 Conn. 430, 432, 433, 123 A. 842, 843, 37 A.L.R. 131.

We do not understand the defendant to deny that in general the police power is sufficient to support regulations for the purposes above mentioned. It appears from the memorandum of decision that in the trial court the objection made to the statute was " that it is based solely upon aesthetic considerations and is designed to prevent the establishment of these yards because they constitute an eyesore and are in their nature unsightly." The situation presented does not require us to decide whether æ sthetic considerations alone would be sufficient to warrant regulation or restriction. At most we need go no further than Windsor v. Whitney, supra, 95 Conn 368, 111 A. 354, 357, 12 A.L.R. 669, in conceding that they " may be regarded in connection with recognized police power considerations." If the latter are sufficiently present, the fact that...