dissenting:
I disagree with both the interpretation of the statutes involved by the majority and with its conclusions that inadequate notice had been given. I also disagree with the trial court’s exercise of “judicial discretion” in not enforcing the statute regardless of the small amount of fee involved. Therefore, I respectfully dissent.
The statute in question is the “Outdoor Advertising Act.” It is now codified as § 43-1-401, et seq., C.R.S.1973. When first adopted in 1965, it was codified as C.R.S. 1963, 120-5-1 et seq. The original version of the statute, C.R.S.1963, 120-5-6(1), required a permit for signs such as this. It also required payment of a permit fee.
While the statute has undergone numerous amendments, the requirement for payment of a fee and procurement of a permit has remained constant. The relevant sections pertaining to permits now are found at §§ 43-1-413 and 43-1-415, C.R.S.1973.
Similarly, the original statute provided in C.R.S.1963, 120-5-9(1), that the Department of Highways could “institute appropriate action or proceeding to prevent or remove [any] violation in any court of competent jurisdiction.” Now § 43 — 1—417(1), C.R.S.1973, provides that “[a]ny outdoor advertising device which does not conform to this Part 4 shall be subject to removal, as provided in this section.” Section 43-1-417(3)(a) pertains to an owner who has not applied for a permit as required. It provides that notice be sent as in other situations of non-compliance covered by that section, specifying in what respect the owner has failed to comply with the requirements of Part 4 of the Act. Upon failure to correct such condition within 30 days, a suit to require removal may be filed as was done in this case.
The power to require removal pervades the entire Outdoor Advertising Act. In § 43-1-406, C.R.S.1973, the maintenance of any advertisement in violation of any provision of the Act is declared to be illegal and the Department is authorized to institute an action to remove such violation, regardless of the nature of the violation. To deny the Department the power to seek removal of an offending sign, leaving it with a suit to collect fees as the sole enforcement device, is to nullify what is the clear intent of the General Assembly.
I also disagree with the majority’s conclusion in Part II that the notice of non-compliance did not comport with the requirements of the statute. Under the facts of this case, it is not significant whether § 43-l-417(2)(a) or § 43-l-417(5)(a), C.R.S. 1973, applies. While the notice given the defendants by certified mail on January 19, 1977, may not be a model of clarity, nevertheless, it is difficult to see how the defendants could claim that they did not receive
*72adequate notice. Especially is this true because renewal application forms had been sent to the defendants for 1975 and 1976, and on September 24, 1976, a renewal form for the overdue years was sent together with a form for 1977 with instructions.
Finally, I would hold that the trial court erred in refusing to enforce the statute as written because of its belief that the small amount of fee involved, and defendants’ belated efforts to pay, should have excused non-compliance. Nowhere in the statute has the General Assembly given such discretion to the judiciary, and we err in invading the province of the General Assembly by not applying the statute as written.
I would reverse the judgment and remand for trial.