                                                  R-236


         THE     A                     ENERAL




                      Hay 1,   1947

Hon. Otis E. Lock              0plnlon v-175
Chairman
Commlttee of Highways          Re: Constltut1onalityof
  & Roads                          H. B. 509, Fiftieth
House of Representatives           Legislature
Austin, TeX8S


          Reference Is made to your lnqulrg concerning
the constltutlonslltyof H. B. 509. Sections 2 and 3 of
the bill are 8s follows:
         "Sec. 2. It sb811 be unlawful for any
    person, firm or private corporation to estsb-
    llsh, maintain or Operate 8 junk yard or junk
    shop within thirty-fiveyards of any public
    highway, or to pemlt such junk yard or junk
    shop to remain within thirty-fiveyards of
    any public highway, except and unless such
    junk y8rd or junk shop 1s effectivelyscreened
    and hidden from view from such public hlgh-
    way by fences or Structures,or evergreen
    shrubs OP other vegetativematerial.
         "Sec. 3. Any vlolatlon of this Act bye
    any person, firm or private corporation,shall
    upon conviction,subject the offender to 8
    fine of not less than Ten DOll8PS 10) ana
    not ~morethan Two Hundred Dollars I%2oO), and
    e8Ch day of any such vlolatfon Shall be treat-
    ed as a separate offense.'
          Although Section 2 Is couched in prohibitory
language, it 1s In reality 8 regulatoryand hot 8 pro-
hibitory law. The Act does not purport to raake8 junk
y8rd or junk shop a public nuisance. It merely purports
to regulate the business of operating 8 junk y8rd or
junk shop within 35 yards of a public highway to the
limited extent of requiring that the junk pard or junk
shop be hidden from vlew,of such public highway. The
qUeStiOn Is whether or not this is 8 prvper exercise of
police power and this question 1s resolved by 8 deter-
mlnstlon as to whether or not such 8 regulationof a
Hon. Otis E. Lock   -   Page 2                v-175


pemon's property or business amounts to "taking" there-
of In vl6latlon of Sec. 19, Article I of the State Con-
stitution and the fourteenthamendment to the Federal
Constitution.
          We approach this question with serious cenceru
for several reasons.'~There is nothing In either the
State or Federal Conrtltutfons,as such, which prohibits
a law of this eharaater,and the ultlm8te question for
decision .involvesa balancing of interestsbetween the
Individualand his right to use his property a8 he sees
f'it,and the rights of th6 general public a8 represented
by the Legislature. The question In the last analysis
la purely one of reasonablenessof the,regulation In so
far aa It affeats property rights and its relationship
to 8 public purpore in so far as It affects the prablic.
            In Lankrdo v. City of Dallas, 47 3. W. (26)
495,   the Dallas Court of Civil Appeals, at page 497,
said:
            "While the power of states and cities
       actiug under State authority, to enact zou-
       lug regulation8 Is now generally recognized,
       doors are left open In all auch enactnenta
       for the contentloo to be made that the regu-
       lations prescribed,as applied to a partlaular
       situation,are unreasonable,arbitrary or dls-
       orlmltzatory."
          This Is the test which must be alplied In ae-
teml8lag the validity of any statute or ordlnnnae which
bar boon challenged on the grouud that It deprive8 8
per608 of hla property w,lthoutdue process of law. 9
Tex. Jwr. 572.
           A similar question to the one Involved hem
was @assea ou by the Supreme Court of India88 ia (teaoral
 outdoor~davertisingCmponJ V. City of Indlanapolia,127
 Ii. E. 309. An ordinance of the sity of IndIanapolls
 prohibited the Elrlnteuanceand opeFtlon,of advertising
 sl@s or billboards located w1kW.n 500 feet Of certain
 prrk8  and boulevrrds. Suit was broaht to enjola the
'Board of Park Co~lrsloaers~of the city from enforcing
 the oralnanoe. The court upheld the vrlldlty of the
 ordluaaceas applied to billboards erected after it was
 passed, but refused to enforce the ordinanceagainst
 billboards existing rt the date of fta enactment. This
 distiaation,referred to a6 a non-conformingu8e, finds
     Bon, OtIs E. Lock, Page 3, V-175




               On the general proposition,however, that
     the Indianapolisordinance was valid when applied
     prospectively,the Supreme Court of Indiana, in the
     8bOV8 styled case said:
              “Under 4 liberalized’ construtitlon
         of the general welfare purposes of state
         and Federal Constitutionsthere la a trcrad
         in the modern decisions (which we approve)
         to foster, UUd8P the pO1lC power, an aeath-
         8tiC and CUltUral Side Of municipal deVe1-
         opmsat--toprevent a thingthat offends the
         sense of sight In the sams manner as a thing
         that offends the senses of hearing and amel-
         linge 3 McQulllen, Mun, Corps* (26) 1049;
         Ware VS~ Wichita, 113 Xanq 153, 157i 214,




              “As social  relations become more com-
         plex, restrictionson individualrights,be-
         come more common. RestrictIons which years
..       ago would have been deemed intolerableand
         in violation of the property ownervieconatl-
         tutional rights are now desirable and necea-
         sary, and zoning ordinances fair in their re-
         quirements are usually sustained. Village of
         Euclid v. Ambler Realt Co. (1926) 272 U.S.
         265 47 S, Ct, ii4 71 E. Ed, 303 54 A.L.R
         1016; Building fn&tor    v, Stockiosa (1924j
         250 MISS. 52, 145 E. E, 262 264; State v.
         Houghton (1925) 164 Minno 146, 150, 204 E.W.
         569, 54 AL,L,R,1012; State v. Roberson (1929)
         197 1. C. 657, 1 0 3. E. 194; Miller vi.Board
         of Public Works ?1925) 195 Cal, 477, 234 P.
         381, 38 A:L.R. 1479a Prltz v. Mesaer (1925)
         1.12Ohio St, 628, 149 No E, 30. A preponder-
         ant majority of the courts of the geveral
Hon.   Otis   E.   Lock, Page 4, V-175


       states have upheld the validity of the
       so-called city planning or zoning laws
       which create restricted reslaence ais-
       tricts and prevent the establishment
       of business enterprisestherein. It is
       stated in McQuillen,Mun. Corp. (2d)
       369-375 that seventeen out of twenty-six
       states hold them valid, and an examina-
       tion of the cases decided subsequentto
       the preparation of that text shows that
       they are now held valid.in at least thir-
       ty out of thirty-threestates wherein the
       question has been considered. . . Under
       the laws and ordinances of this character
       many regulationsana limitationsof struc-
       tural design and pnopertg use have been
       upheld which bear no closer relation to
       the public safety, health, morals and gen-
       eral welfare, or public comfort, conven-
       ience, and prosperity (which latter terms
       are also included in the recent cases, 3
       McQuillen,Mun. Corp. (26) p. 355)) than
       does the ordinance concerning billboar$s
       in the instant case, 43 C. J. 333-345.
           See also Article by Henry P. Chandler of
the Chicago Bar entItlea “The Attitude of the Law
Toward Beauty” appearing in the August 1922 issue
of the American Bar Association Journal.
          In passing on a question of this character,
the Attorney General should act with extreme caution.
Chief Justice Cureton expressed this same thought in
Lombardo v. City of Dallas, 73 S. W. (2d) 475, at
486, when he said:
            “In passing upon the validity of an
       act or an ordinance affecting the public,
       such as those before us, our duty is one
       ~,‘~~e,~:~~s,,~,on~~~~~~~~ ;“‘;,.“4”6?~4;~:
       ‘One of the most delicate   &ties     to be per-
       formed by the judicial branch of the govern-
       ment is that of declaring an act of the leg-
       islative   departmentto be unconstitutional
       and invalid. The power of the courts in
       this respect is one that will be exercised
       with great   caution, especially where the
Hon.   Otis B. Lock, Page 5, V-175


       matters in controversypertain to povera-
               policies, the public herlth and pub-
       P ic utilities. The court must aecessarlly
       cover the 8ame ground as that which has al-
       ready been covered bg the Leglsl.+tive aepart-
       ment, and it must indirectlyoverrule t$:n
       decision of th8t co-ordinatedepartment.
          In view of the fact that the Highway Depart-
msnt spends thousands of dollars annually for beauti-
fication of the public highways, the Attorney General
cannot say that this bill, which has for its purpose
the same ultimate aim, is an unreasonableregulation
of private propsrtj when applied prospectively.


            H. B. 509, 50th Legislature,provia-
       ing for screening of junk yards within
       35 yards of a public hlghwq, if enacted,
       will be valid as applied to junk yards OP
       junk shops thereaftellestablishedbut ln-
       valid as awlled to junk srrds or junk
                      on the aat it la enacted

                              Verr truly   yours,

                          ATTORHBY @ENEZAL OF TE3tAS




                                            Assistant
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