Stoner McCray System v. City of Des Moines

• Citation: 58 A.L.R.2d 1304,247 Iowa 1313,78 N.W.2d 843
• Decision Date: 16 October 1956
• Docket Number: No. 49046,49046
• Parties: , 58 A.L.R.2d 1304 The STONER McCRAY SYSTEM, Appellee, v. CITY OF DES MOINES, Iowa, Fred Heyer, Inspector of Buildings, Lewis A. Royal, City Prosecutor, and Tod Lyon, Bailiff of Municipal Court, Appellants.
• Court: Iowa Supreme Court

Page 843

78 N.W.2d 843

247 Iowa 1313, 58 A.L.R.2d 1304

The STONER McCRAY SYSTEM, Appellee, v. CITY OF DES MOINES, Iowa, Fred Heyer, Inspector of Buildings, Lewis A. Royal, City Prosecutor, and Tod Lyon, Bailiff of Municipal Court, Appellants.

No. 49046.

Supreme Court of Iowa.

Oct. 16, 1956.

Wade Clarke, Corp. Counsel, Cloid I. Level, City Solicitor, and Anthony T. Renda, Asst. City Solicitor, Des Moines, for appellants.

Brody, Parker, Miller, Roberts & Thoma, Des Moines, for appellee.

LARSON, Justice.

This is an action in equity to enjoin the defendants from enforcing Zoning Ordinance No. 5453 of the City of Des Moines, Iowa, with reference to plaintiff's outdoor advertising signs and billboards which were being maintained on certain specifically described tracts of land owned or leased by plaintiff. Plaintiff contends the ordinance attempts to make an unconstitutional discrimination against plaintiff and its property, attempts to destroy plaintiff's vested property rights, and attempts to deprive plaintiff of its property without due process of law. The trial court found for the plaintiff and enjoined defendants from interfering with plaintiff's right to maintain and operate the outside advertising signs and billboards on the properties specifically described in plaintiff's petition. Defendants appeal.

The plaintiff herein, The Stoner McCray System, is a corporation duly organized under the laws of the State of Iowa, with its principal place of business in the City of Des Moines, Iowa.

The defendants are the City of Des Moines, Iowa, a municipal corporation; Fred Heyer, the duly appointed qualified and acting inspector of bildings of said city; the city prosecutor; and the bailiff of said Municipal Court.

Plaintiff complains of defendants' failure to follow 58 I.C.A. Rules of Civil Procedure, rule 344, in preparing and presenting propositions upon which it claims error, and it is true we are somewhat at a loss to determine just what errors appellants claim the trial court made in its conclusions of law and fact. We were not favored with an oral presentation of this matter and must therefore decide the best we can on whether or not the ordinance violated constitutional guarantees and, if so, whether or not the trial court's action was correct in issuing herein an injunction denying the city power to enforce the provisions of Ordinance No. 5453 as it relates to the abolishment of billboards and signs.

The propositions presented by this appeal are primarily questions of law. The facts were established without material dispute in the record. The Zoning Ordinance No. 5453 in question went into effect July 15, 1953, and we have previously held it had the effect of repealing the previous Zoning Ordinance No. 3619 and amendments thereto. Brackett v. Des Moines, 246 Iowa 249, 67 N.W.2d 542.

Section 2A-3 of Ordinance No. 5453 provides:

'Billboard: 'Billboard' as used in this ordinance shall include all structures, regardless of the material used in the construction of the same, that are erected, maintained or used for public display of posters, painted signs, wall signs, whether the structure be placed on the wall or painted on the wall itself, pictures or other pictorial reading matter which advertise a business or attraction which is not carried on or manufactured in or upon the premises upon which said signs or billboards are located. * * *

'Building: Any structure designed or intended for the support, enclosure, shelter or protection of persons, animals, or property, but not including signs or billboards. * * * (Emphasis supplied.)

'Nonconforming use: The conforming or nonconforming use of any building or land pursuant to the ordinances amended hereby which use was established prior to or at the time of passage of this Ordinance, or amendments thereto, which does not conform after the passage of this Ordinance, or amendments thereto, with the use regulations of the district in which it is situated. * * *'

Section 2A-7 provides:

'Conformance Required. Except as hereinafter specified, no building or structure shall be erected, converted, enlarged, reconstructed or structurally altered, nor shall any building or land be used, which does not comply with all of the district regulations established by this ordinance for the district in which the building or land is located.

'Continuing Existing Uses. The use of a building existing at the time of the enactment of this Ordinance may be continued even though such use may not conform with the regulations of this Ordinance for the district in which it is located. Any use in existence at the adoption hereof which was not an authorized 'nonconforming use' under previous zoning ordinances shall not be authorized to continue as a nonconforming use pursuant to this ordinance, or amendments thereto.' (Emphasis supplied.)

The provisions of the previous Zoning Ordinance No. 3619 legalized April 15, 1939, by an Act of the Iowa Legislature, Acts 48th Gen.Assem., c. 270, and reenacted as Appendix 2 to Ordinance No. 4724 in 1942, provided for nonconforming uses as follows:

'The lawful use of land existing at the time of the passage of this ordinance, although such use does not conform to the provisions hereof, may be continued, but if such nonconforming use is discontinued, any future use of said premises shall be in conformity with the provisions of this ordinance. * * * Whenever a use district shall be hereafter changed, any then existing nonconforming use in such changed district may be continued or changed to another nonconforming use of the same or more restricted classification, provided all other regulations governing the new use are complied with.' (Emphasis supplied.)

The record discloses and the trial court found, of 39 tracts of land owned by plaintiff, 29 tracts constituted legal and conforming uses of the land prior to the enactment of Ordinance No. 5453 in 1953, and 10 other tracts constituted legal nonconforming uses prior to said enactment; also that of 22 tracts of land leased by plaintiff, 20 tracts constituted legal and conforming uses of said land, and the other 2 tracts constituted legal nonconforming uses prior to the enactment of Ordinance No. 5453 in 1953.

By the terms of Ordinance No. 5453 the city was so rezoned that plaintiff's billboards on land owned or leased by it were placed in zones where continued use thereof was either prohibited or permissive only at the option of the city.

The record discloses, and it is not controverted, that on each tract of land owned by plaintiff, billboards, if not already there, were placed thereon within thirty days after title was acquired; that at the time all necessary permits to erect said signs were obtained from the City of Des Moines, and that no contention has been made by defendants that any structures or billboards maintained by plaintiff are nuisances.

Thus the contentions which appear to be at issue before us are that Ordinance No. 5453 attempts to make an unconstitutional discrimination against plaintiff and its property, attempts to destroy plaintiff's vested property rights, and attempts to deprive plaintiff of its property without due process of law, all in violation of the State and Federal Constitutions. Section 9, article 1, Constitution of State of Iowa, I.C.A.; Fourteenth Amendment to the Constitution of the United States.

I. As in the Central States Theatre Corp. v. Sar case, 245 Iowa 1254, 66 N.W.2d 450, we find the briefs furnished have taken a wide range, but in our view the basic principles upon which a final determination must rest are not complicated and the required decision is clear.

It is, of course, well settled that when constitutional questions are raised, all reasonable intendments must be indulged in favor of the validity of the enactments. We are aware that for us to declare acts of the legislative body illegal because they transgress upon provisions of the State or Federal Constitutions, we should do so when exercising great care and only in compelling cases. Central States Theatre Corp. v. Sar, supra; Miller v. Schuster, 227 Iowa 1005, 1014, 289 N.W. 702, 706, 707. Yet even keeping this rule in mind, we find here no means of escape from the conclusion that the provisions of Ordinance No. 5453 relating to the abolishment of existing signs or billboards is invalid, and therefore agree with that conclusion of the trial court.

II. It is true when a municipal corporation exercises its police power the courts will not intefere unless there has been a clear abuse of discretion, 62 C.J.S., Municipal Corporations, § 199, p. 375, and where the police power is exercised through an ordinance enacted under express statutory authority, as here, the courts cannot determine the reasonableness of the ordinance or question the same except upon constitutional grounds. General Outdoor Advertising Co. v. Indianapolis, 202 Ind. 85, 172 N.E. 309, 72 A.L.R. 453.

Billboards properly may be put in a class by themselves and may in the future be prohibited 'in residence districts of a city in the interest of safety, morality, health, and decency of a community.' Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S.Ct. 190, 191, 61 L.Ed. 472; L.R.A.1918A, 136; Ann.Cas.1971C, 594; 267 Ill. 344, 108 N.E. 340. A reasonable control or regulation of the construction and maintenance of advertising billboards by the municipality is proper. Under a liberal construction of the general welfare purposes of the State and Federal Constitutions we note a trend to foster under police power the aesthetic and cultural side of municipal development--to prevent a thing that offends the sense of sight in the same manner as a thing that offends the senses of hearing and smelling. 3 McQuillin, Mun.Corp. (2d) 1049; Ware v. Wichita, 113 Kan. 153, 157, 214 P. 99; State ex rel. Carter v. Harper, 182 Wis. 148, 158, 196 N.W. 451, 33 A.L.R. 269. This trend, of course, must be kept within reasonable...