Marvis HOGEN et al., Plaintiffs-Appellants, v. SOUTH DAKOTA STATE BOARD OF TRANSPORTATION et al., Defendants-Respondents.
No. 11877.
Supreme Court of South Dakota.
Sept. 15, 1976.
Rehearing Denied Oct. 21, 1976.
245 N.W.2d 493
Ed McBride testified that Leo Ausmann had told him that he considered it to be a public road and welcomed the improvement of the road to ” get [him] out of the mud.’ ” This testimony standing alone is considered the “weakest kind of testimony” by the courts. Mahan v. Mahan, 1963, 80 S.D. 211, 121 N.W.2d 367. However, there were several things that made this testimony more credible. First of all, Leo Ausmann concededly never made any objection to the use of the road by the public during his lifetime; he never made any objection when the road was being improved right by his home or when several families began using the road after McBride sold homesites on his land. Mr. Ausmann built his house where Mr. Brusseau now lives to give easy access to this road. Mr. Brusseau purchased a homesite of ten acres from Leo Ausmann about the same time that McBride sold homesites further up the road. He is just one of a group that depends on the road to get from his homesite to the Nemo road. I am certain that he will not spread rocks or dig a ditch across this access between his homesite and the Nemo road.
This testimony is also bolstered further by Mr. McGrath who had been employed by Homestake since 1954. Homestake actually has more land being crossed by this road than any other party. McGrath stated that Homestake and others had used the road consistently, if intermittently, for the entire period without obtaining permission from anyone, and he considered it to be a public road.
The testimony of Bies, Brusseau and Damon Ausmann (son of Leo Ausmann) does not contradict the statements by McBride, although they did state that they never heard Leo Ausmann refer to this road as being public.
In view of this evidence, I cannot conclude that the trial court‘s findings were clearly erroneous, and I would affirm.
I am authorized to state that Justice WINANS joins in this dissent.
William J. Janklow, Atty. Gen., Carl W. Quist, Asst. Atty. Gen., Pierre, for defendants-respondents.
WINANS, Justice.
This is an action under the Uniform Declaration Judgment Act,
Plaintiffs represent two classes of persons affected by the statute. The first is a class of landowners abutting the interstate and primary highway systems in the state. It is upon their land that the businessmen constituting the second class rent space for the advertising of their respective products, services, and tourist attractions to the traveling public. Defendants are the state officials charged with the administration of the state Highway Beautification Act.
The statute under attack was passed in response to the 1965 version of the federal Highway Beautification Act,
South Dakota enacted what was thought to be appropriate compliance legislation in 1966 (S.L.1966, Ch. 87), but was forced to amend its statute in 1973 (S.L.1973, Ch. 192) as a result of the case of South Dakota v. Volpe, (D.S.D.1973), 353 F.Supp. 335. There the district court upheld a determination by the Secretary of Transportation that the state‘s statute was not in compliance with congressional intent. The effect of the amendment was to prohibit outdoor advertising in the state‘s areas, within the 660-foot restricted zone. In 1975 the state version was again amended (S.L.1975, Ch. 195), this time to reflect the “visible from the main traveled way” standard, making the rural prohibition complete, except in “unzoned commercial areas” as defined by a contract between the state and the federal government.
The Board of Transportation is charged with the primary responsibility for regulating outdoor advertising. The Board is authorized to enter into contracts with the Secretary of Transportation and is instructed to take action in the name of the state to effectuate those agreements. The Board is authorized to acquire nonconforming signs in accordance with
The public policy behind the legislation is reflected in
“The Legislature, recognizing the public investment in highways and in justification of these expenditures, particularly the cost of maintenance which is borne wholly by state funds, finds and declares that it is necessary to promulgate a public policy of planning and zoning adjacent to the interstate and primary systems within this state to promote their maximum utilization by encouraging the development of roadside businesses to serve the needs and pleasures of the traveling public, as well as to stimulate tourism, commerce, and for purposes of planning the general growth of the state‘s economy. Further, desiring to ensure reasonable compliance with the Highway Beautification Act of 1965, it is the intention of the Legislature to provide a statutory basis for the regulation of outdoor advertising consistent with the public policy relating to areas adjacent to the interstate and primary systems as declared herein and by Congress in Title 23, United States Code, ‘Highways.”
Plaintiffs have loosed a quiver of constitutional arrows at this statute; the trial court found them all wide of the target. We find that one has found its mark.
Plaintiff contends that the statute is unconstitutional for the following reasons:
1) That
3) That
4) That
5) That
6) That
7) That
8) That
9) That
10) That the permit and fee requirements of
Initially defendants contend that this action is not properly before the court because the opinion sought is merely advisory in nature. They stress that the court is not to decide moot or theoretical questions. We find, however, that this action involves more than the simple rendering of legal advice by the court. There is certainly a justiciable controversy—defendants have asserted that they fully intend to enforce the statute. Plaintiffs have a legal interest in the loss of their property rights, an interest which is adverse to the interests of the state. Although the action by the state is futuristic in nature, the controversy is ripe for judicial determination at this time because the conflict is by the state‘s own admission imminent. In accordance with the principles established in Kneip v. Herseth, 1974, S.D., 214 N.W.2d 93, we find that a declaratory judgment should issue.
We find it unnecessary to consider all of the issues raised by plaintiffs because we are of the opinion that
It is well settled in this state that the legislature may not abdicate the power to legislate or delegate that power to any other department or body. Quasi-legislative power can be delegated subject to the requirement that adequate standards be adopted to guide the body to whom the power is delegated. Schryver v. Schirmer, 1969, 84 S.D. 352, 171 N.W.2d 634, and authorities cited therein.
What the legislature has done in this instance is to abdicate its power to legislate to the Board of Transportation, an action which is constitutionally impermissible.
“The board of transportation shall by rule and regulation modify the provisions of chapter 31-29, to be effective until July first following the close of the next regular session of the state Legislature, so that compliance with subsequent changes in the federal billboard or junk yard laws or regulations which become law while the Legislature is not in session may be complied with immediately.”
This section on its face delegates the power to change existing legislation to comply with future federal mandates, something that this court has held to be unconstitutional on prior occasions. As we said in Schryver v. Schirmer, supra,
“Statutes adopting laws or regulations of other states, the federal government, or any of its agencies, effective at the time of adoption are valid, but attempted adoption of future laws, rules or regulations of other states, or of the federal government, or of its commissions and agencies generally have been held unconstitutional as an unlawful delegation of legislative power. Dawson v. Hamilton, Ky., 314 S.W.2d 532; Nostrand v. Balmer, 53 Wash.2d 460, 335 P.2d 10; Seale v. McKennon, 215 Or. 562, 336 P.2d 340;
Cheney v. St. Louis S. W. Ry. Co., 239 Ark. 870, 394 S.W.2d 731.”
Accord, State v. Johnson, 1970, 84 S.D. 556, 173 N.W.2d 894.
Were this the only defect in the sections under consideration the balance might stand without the invalidated section. Under the doctrine of separability we are bound to uphold the remaining sections if they can stand by themselves and if it appears that the legislature would have intended the remainder to take effect without the invalidated section. State v. Shearer, 1972, 86 S.D. 711, 201 N.W.2d 180. These sections, however, contain other defects that make their salvation under the separability doctrine impossible.
We find a lack of adequate standards in
“In negotiating such agreements, the state [highway commission] shall be guided by such further special circumstances and conditions existing in and affecting this state, and the reasonable needs of the state and its economy for outdoor advertising as it shall deem appropriate.”
The section sets out
“consider and advocate as the position of the state in negotiating such agreement, that the outdoor advertising industry is a valid and necessary part of the economy of the state of South Dakota and that the department of transportation should endeavor to obtain and authorize as many locations as is permissible under the provisions of the United States Code, above mentioned, for outdoor advertising. The areas to be designated as ‘unzoned commercial or industrial areas’ should be made as large as is permissible under the above noted federal statute.”
No other standard is set out to define what constitutes an “unzoned commercial and industrial” area.
In the case of Affiliated Distillers Brand Corp. v. Gillis, 1964, 81 S.D. 44, 130 N.W.2d 597, we considered a similar question. There the Commissioner of Revenue was authorized to promulgate “any reasonable regulations not inconsistent with this title or with federal laws or regulations, to effect the objects of this title . . . .” We held that this standard was insufficient to guide the Commissioner‘s actions. We cited the general rule that
“A statute or ordinance which in effect reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers. The presumption that an officer will not act arbitrarily but will exercise sound judgment and good faith cannot sustain a delegation of unregulated discretion.” 130 N.W.2d at 600.
Similar discretion was granted to the Board of Transportation in this instance. In negotiating with the federal government the Board is to consider such things “as it shall deem appropriate” and is to attempt to establish unzoned areas “as large as is permissible.” These standards are hardly sustainable as clear, reasonable and understandable guidelines for agency action. Boe v. Foss, 1956, 76 S.D. 295, 77 N.W.2d 1.
Compliance with federal dictates and negotiation with the United States Department of Transportation are concepts that pervade the state legislation on regulation of outdoor advertising. The sections
It is with reluctance that this court holds legislation to be unconstitutional, but we find in this case that the conflict between the statute and the constitution is “plain and palpable.” Lammers v. Heartland Consumers Power District, 1970, 85 S.D. 205, 180 N.W.2d 398. We find that
DUNN, C. J., and COLER, J., and BRAITHWAITE, Circuit Judge, concur.
WOLLMAN, J., concurs in part and dissents in part.
BRAITHWAITE, Circuit Judge, sitting as a member of the Court.
ZASTROW, J., not having been a member of the Court at the time this case was orally argued, did not participate.
WOLLMAN, Justice (concurring in part, dissenting in part).
I agree with the holding that
Under my view of the case, then, I would hold that