Vermont Salvage Corporation v. Village of St. Johnsbury Et Als

• Decision Date: 05 October 1943
• Parties: VERMONT SALVAGE CORPORATION v. VILLAGE OF ST. JOHNSBURY ET ALS
• Court: Vermont Supreme Court

34 A.2d 188

113 Vt. 341

VERMONT SALVAGE CORPORATION v. VILLAGE OF ST. JOHNSBURY ET ALS

Supreme Court of Vermont

October 5, 1943

May Term, 1943.

Constitutionality of Statutes and Ordinances Licensing Junk Business.

1. Where an ordinance consists of several separate sections which are not inseparably connected, even though some of the sections are held to be invalid those which are valid may be enforced.

2. The junk business is one which is a proper subject of statutory or ordinance regulation under the police power.

3. Every presumption is to be made in favor of the constitutionality of an ordinance and it will not be declared unconstitutional without clear and irrefragable evidence that it infringes the paramount law; but the exercise of the police power must be reasonable and whether it is reasonable in a particular instance is a question ultimately for the court.

4. The safety, morals and welfare of children are matters which are properly included within the police power of the State.

5. Authority given to a municipality to enact ordinances regulating business includes by implication authority to charge reasonable license fees.

6. Authority given to a municipality to license a business must be exercised as a means of regulation only and cannot be used as a source of revenue or as a means of prohibiting the conduct of the business.

7. Courts are more ready to hold license fees excessive and ordinances unconstitutional when such fees and ordinances depend upon municipal enactment than they are to make such holdings in regard to statutes.

8. Police power signifies the governmental power of conserving and safeguarding the public safety, health, morals and welfare.

9. The use of a person's property cannot be limited or restricted under the guise of the police power where the exercise of such power would be warranted solely on aesthetic considerations.

10. An ordinance providing for license fees in connection with the conduct of a business which goes beyond the reasonable and legitimate exercise of the power granted the municipality is invalid.

11. Under Section 1590 of the Uniform Declaratory Judgments Act a person whose rights, status or other legal relations are affected by a statute or municipal ordinance may have determined any question of construction or validity arising under the statute or ordinance and obtain a declaration as to his rights, status or legal relations thereunder.

12. The State, in the exercise of its police power, has authority to prevent or abate nuisances, and under this power, and subject to constitutional limitations, the Legislature has authority to declare what shall be deemed nuisances and to provide for their suppression; but this power may not be made a cloak for confiscation or for withdrawing property from the protection of the law.

13. Although the State has power to prevent and abate nuisances it may not declare that to be a nuisance which is not so in fact; and its action in that regard is subject to review by the courts.

14. Maintaining and operating a junk yard, whether classed as a motor vehicle junk yard, or otherwise, is a legal and useful business and consequently not a nuisance per se.

15. The mere fact that a thing is unsightly and thus offends the aesthetic sense furnishes no valid ground for a declaration by the Legislature that it is a nuisance.

16. In a proceeding brought to obtain a declaratory judgment regarding the validity of an ordinance which might involve criminal prosecution the grand jurors and chief of police of the town enacting an ordinance are proper parties.

17. A cross bill is a proceeding to procure a complete determination of a matter already in litigation, and the new facts introduced by it are such, and only such, as are necessary to have before the court in the decision of the question raised in the original suit, to enable it to do full and complete justice to all the parties before it in respect to the cause of action on which the orators rest their right to aid or relief.

18. Where a village ordinance is declared invalid it is unnecessary to issue an injunction against the municipality enacting the ordinance or its officials; it will be assumed that they will heed the decision of the court and that such injunction is unnecessary.

BILL IN CHANCERY seeking declaratory judgment, and cross bills. Heard on demurrer to the original bill, on demurrer to one cross bill and on motion to strike the second cross bill. In Chancery, Caledonia County, Blackmer, Chancellor. Defendant's demurrer overruled, plaintiff's demurrer and motion allowed in part.

Cause remanded with direction that a decree be entered declaring sub-sections (i) and (j) of section 6 of chapter 4 of the ordinances of the village of St. Johnsbury to be invalid, null and void. The order and decree of the chancellor overruling the defendants' demurrer to the plaintiff's bill of complaint is affirmed. The order and decree adjudging paragraphs ten, eleven and twelve of the cross bill of the village of St. Johnsbury to be insufficient is also affirmed. The order and decree adjudging the remainder of said cross bill to be sufficient is affirmed except as to paragraph eight of said cross bill as to which it is reversed. The order and decree granting the motion to strike the cross bill of the State of Vermont is affirmed. The cause is also remanded for any further proceedings which may properly be had, not inconsistent with the views herein expressed. Let neither party recover costs in this court.

Witters & Longmore, Conant & Parker and George L. Hunt for the plaintiff.

Arthur L. Graves for the defendant.

Alban J. Parker, Attorney General, and H. Stanwood Brooks, State's Attorney, for the State.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

JEFFORDS

This is a proceeding in chancery praying for a declaratory judgment under the provisions of the Uniform Declaratory Judgments Act, chapter 68 of the Public Laws. In addition to the village, the defendants are its trustees, the attorney general, the state's attorney of Caledonia county, the grand jurors of the town of St. Johnsbury and the chief of police of the town. The defendants filed an answer, incorporating therein a demurrer to the bill. The village then filed a cross bill to which the plaintiff answered, also incorporating a demurrer. The State of Vermont brought a bill of complaint "in the nature of a cross bill" naming this plaintiff as defendant which thereupon filed a motion to strike the cross bill. The chancellor after hearing had upon the two demurrers and the motion to strike ordered and decreed that the defendant's demurrer be overruled and the bill of complaint adjudged sufficient; that the cross bill of the village is sufficient except as to the last three paragraphs thereof; that the motion to strike the cross bill of the State be granted. Exceptions were allowed to all of the parties aggrieved by the various rulings and the case passed to this Court before final judgment pursuant to Sec. 2072 of the Public Laws.

From the various pleadings here under consideration the facts material to the determination of the questions presented may be summarized as follows: By a provision in its charter (Par. b of sec. 4 of No. 179 of the Acts of 1927) the village was granted the authority to license certain things among which were junk businesses. Pursuant to this authority an ordinance of the village was passed (Sec. 6 of chapter 4, of the village ordinances) providing that licenses shall be required for the conduct of the business of junk dealers and should be granted under certain enumerated restrictions. This ordinance became effective on or about February 1, 1931. On November 19, 1941, the trustees of the village passed an amendment to this ordinance to become effective January 1, 1942. The ordinance as amended contains many restrictive provisions which are not here questioned. Such are for the requirement of a license; the definition of a junk dealer, of a junk yard and of a motor vehicle junk yard, and a statement as to what should constitute separate junk yards of any junk dealer. Other unchallenged provisions provide for the inspection by certain village officials of junk yards and motor vehicle junk yards and require that none of the articles commonly found in a junk yard shall be allowed to remain upon the land of the junk dealer for more than twenty-four hours unless within the buildings or properly fenced enclosures on the premises.

Sub. sec. d of the ordinance as amended which was par. c of the original ordinance is attacked. This paragraph is as follows:

"Every junk yard shall be enclosed by a substantial fence or wall of uniform height and construction at least six feet high, and in the case of fences of such construction that the area of the openings or holes in the texture of such fence shall not exceed the area of the solid or closed portions thereof, except that fences of steel or other metal of equal strength and durability of not less than No. twelve gauge wire and with a mesh having an area of not over four square inches may be employed. Such fences or walls shall at all times be maintained and kept in good repair. No person shall maintain or conduct a junk yard unless the same is enclosed by such fence or wall."

The plaintiff also challenges in its bill the provisions of the ordinance as amended which relate to fines and penalties. These sub sections are the same as similar provisions in the original ordinance and as no reason is advanced in brief or argument by the plaintiff as to why these provisions are not reasonable and valid they are not considered.

Sub sec. (g) of the original ordinance in amended form appears as sub. sec. (h) of the...