State v. Smith

• Decision Date: 06 July 1981
• Citation: 618 S.W.2d 474
• Parties: STATE of Tennessee, Plaintiff-Appellee, v. Elmer SMITH, Jr., Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 474

618 S.W.2d 474

STATE of Tennessee, Plaintiff-Appellee, v. Elmer SMITH, Jr., Defendant-Appellant.

Supreme Court of Tennessee.

July 6, 1981.

Gary R. Wade, Sevierville, for defendant-appellant.

Al Schmutzer, Jr., Dist. Atty. Gen., Richard Vance, Asst. Dist. Atty. Gen., Sevierville, Claudius C. Smith, Asst. Atty. Gen., Nashville, for plaintiff-appellee; William M. Leech, Jr., Atty. Gen., of counsel.

OPINION

HARBISON, Chief Justice.

Appellant was convicted for violation of statutes regulating the operation of automobile graveyards or junkyards. T.C.A. §§ 54-5-901 to 905 and T.C.A. §§ 54-20-101 to 121. His conduct consisted of establishing an automobile junkyard after 1965 within a prohibited distance from a state highway and operating the same without a proper permit or license. We affirm the convictions.

Appellant concedes that both sets of statutes apply to his property and his business site if they are valid. The earlier statutes, T.C.A. §§ 54-5-901 to 905, were enacted in 1965. They prohibit the establishment of "automobile graveyards" within one thousand feet of certain "through routes" after their effective date. T.C.A. § 54-5-902. The later statutes, T.C.A. §§ 54-20-101 to 121, regulate junkyards in general, including "automobile graveyards" and "vehicle junkyards," as well as other types of waste or junk storage such as garbage dumps and sanitary fills. Apparently there is no insistence that the later statutes repealed or modified the earlier ones insofar as they affect appellant.

Appellant insists that both sets of statutes are unconstitutional and represent an improper exercise of the state's police power upon the single ground that both rest entirely upon aesthetic considerations. ¹

These proceedings were instituted by the issuance of criminal warrants in the General Sessions Court of Sevier County. A separate warrant was issued under each set of statutes. Appeal was taken from a conviction and fine imposed under each warrant. Almost no evidentiary record was developed in the circuit court. The case was disposed of there upon a short stipulation of facts and very brief testimony from appellant.

The stipulation established that appellant commenced his business in February 1980 upon a five-acre leased tract. The property fronts upon State Highway 66, and the business is located within one thousand feet of this highway. Appellant did not have a permit as required by T.C.A. § 54-20-113. The junkyard is situated within view of the highway. The property is not zoned or otherwise designated by any local governing body for use as a vehicle junkyard. The "area in question" where the tract is situated is sparsely populated, unincorporated, rural and consists primarily of farm land. The size of the "area" and its proximity to a city or town are not specified in the stipulation. There are statements of counsel that the highway is rather well-traveled and leads to a reservoir and recreational part which "is heavily used in the summer time." It was stipulated that the topography is such that a fence would not substantially hide the junkyard from public view, although one portion near a barn could be concealed by a fence. There is an unsworn statement in the record by patrolman that the barn is upon a hillside, situated two hundred fifty to three hundred yards from the highway. A used car lot and a "tire place" exist within three-tenths of a mile from the site.

Upon this record appellant apparently insists that he is entitled to a finding of fact that, as applied to his business, the only purpose served by the regulatory statutes is an aesthetic one, to enhance the beauty of the landscape. The evidence does not justify such a finding.

In enacting the most recent of the statutes, the General Assembly included the following statement:

"For the purpose of promoting the public safety, health, welfare, convenience and enjoyment of public travel, to protect the public investment in public highways, and to preserve and enhance the scenic beauty of lands bordering public highways, it is hereby declared to be in the public interest to regulate and restrict the establishment, operation and maintenance of junkyards in areas adjacent to the interstate and primary systems within this state. The general assembly hereby finds and declares that junkyards which do not conform to the requirements of this chapter are public nuisances." T.C.A. § 54-20-102.

This statute was enacted in 1967. By supplementary provisions effective July 1, 1974, vehicle junkyards were prohibited within one thousand feet of a state roadway without a current vehicle junkyard concealment control permit, issued by the Commissioner of Safety, except those located in areas zoned for industrial use. T.C.A. § 54-20-113.

Only if we could say that these statutes have no reasonable relation whatever to safety, health, welfare, public investment in highways or convenience of public travel, as applied to the site in question, would we reach the broad proposition asserted by appellant that the statutes promote aesthetic goals only. There is no such factual showing in this record.

From such brief evidence as is in it, we are not prepared to find that the regulatory statutes are totally and completely unrelated to highway safety, maintenance and other purposes referred to by the legislature which are not necessarily wholly aesthetic in nature.

Appellant relies principally upon the case of City of Norris v. Bradford, 204 Tenn. 319, 321 S.W.2d 543 (1958), in which this Court held invalid a local zoning ordinance prohibiting fences on residential lawns fronting on streets. In the course of that opinion the Court did state that exercise of the police power based solely upon aesthetic considerations could not be sustained. Appellant also relies upon language contained in Hagaman v. Slaughter, 49 Tenn.App. 338, 354 S.W.2d 818 (1961), in which the Court sustained an injunction against the operation of a junkyard as a public nuisance, but modified the relief granted by the chancellor so as to allow further operations if they could be conducted without certain offensive aspects.

Appellant seems to concede that if other factors than aesthetics, such as traffic safety and the protection of the public investment in highways, did justify the statutory regulations involved here, then aesthetic considerations, in addition, might be taken into account by a legislative body. As stated, appellant has not eliminated such other factors in this case, nor has he contradicted the legislative declaration that those factors prompted the General Assembly to enact the statutes.

It is true that there are limits upon the exercise of the police power of state and local governments. See Livesay v. Tennessee Board of Examiners in Watchmaking, 204 Tenn. 500, 322 S.W.2d 209 (1959). However, in the case of Ford Motor Co. v. Pace, 206 Tenn. 559, 564, 335 S.W.2d 360, 362 (1960), upholding a statute regulating the licensing of automobile dealers and salesmen, this Court said:

"In considering the question, whether or not the Legislature has the right to enact such a statute under the police power, we must take into consideration and look at things in the light of the social and economic conditions existing at the present time rather than at the time our Constitution was adopted. Legislative power is not static and helpless but arises to adjust and face new conditions as they appear to affect the people of the State. Of course, the Legislature of the State cannot prohibit an ordinary business but it may, however, regulate the business to promote the health, safety, morals or general welfare of the public. The guarantees of the Constitution imply the absence of arbitrary restraint, but not immunity from reasonable regulations and prohibitions imposed in the interest of the people of the State."

Certainly a legislative declaration of the need for regulation is not conclusive upon the courts. Nevertheless, as stated in the Pace case, supra :

"It makes no difference what our personal views may be as to the necessity of such legislation as that herein, the fact remains that the Legislature of the State concluded that a...