No. 13430
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
STATE OF MONTANA,
Plaintiff and Respondent,
CECIL BERNHARD,
Defendant and Appellant.
Appeal from: District Court of the Eleventh Judicial
District
Honorable Robert C. Sykes, Judge presiding.
Counsel of Record:
For Appellant:
Cecil Bernhard argued Pro Se, Eureka, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena,
William Douglas, County Attorney, Libby, Montana
Joe Roberts argued, Libby, Montana
Submitted: January 12, 1977
Decided :
Filed :
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant Cecil Bernhard appeals from a judgment entered
on a jury verdict in the district court, Lincoln County, con-
victing him of operating a motor vehicle wrecking facility
without a license, a misdemeanor.
On November 6, 1975, a complaint charging defendant
with operating a motor vehicle wrecking facility without a license,
in violation of section 69-6802, R.C.M. 1947, was filed in Lincoln
County justice court. On November 26, 1975, following a jury
trial in which defendant was found guilty of the charge, he was
fined $300 and sentenced to 30 days in the county jail. Defen-
dant appealed to the district court and on March 1, 1976, was
again found guilty by a six person jury. The district court im-
posed a fine of $250 and a jail sentence of 30 days, both of
which were to be suspended provided defendant procured a license
to operate a motor vehicle wrecking facility within 30 days of
the judgment date. Defendant appeals from this judgment.
At all stages of the proceedings herein defendant appeared
and at his request, acted as his own counsel.
Defendant owns a parcel of land located approximately
one-half mile from Eureka. This land is abutted by two county
roads. On a portion of this land defendant kept between 60 and
100 unlicensed, discarded motor vehicles.
Effective May 1, 1974, Lincoln County began administer-
ing a "junk vehicle" program pursuant to Ch. 68, Title 69, Revised
Codes of Montana, 1947. This act and the regulation promulgated
thereunder provide for the licensing and regulation of motor
vehicle wrecking facilities, the control of junk vehicles in
nonwrecking yard locations, and the establishment of motor vehicle
graveyard facilities.
Terrence Schultz, Lincoln County sanitarian, was given
authority to administer the program by the Lincoln County
commissioners. Schultz first met with defendant on May 16, 1974,
and explained to him that the discarded vehicles on his property
did not comply with the law. A letter dated June 3 , 1974, from
the sanitarian to defendant further explained the new law and
the consequences of noncompliance. Defendant responded with a
letter to the sanitarian in which he expressed a desire to "work
something out" with respect to his use of the property involved.
On July 2, 1974, defendant and Schultz met again and discussed
alternative means of conforming defendant's property to the stat-
utory requirements. Defendant's failure to comply with those
requirements resulted in a charge of operating a motor vehicle
wrecking facility without a license being filed against him in
Lincoln County justice court. Defendant was convicted following
a jury trial on December 17, 1974.
Defendant's continued refusal to procure a license after
his first conviction triggered a second prosecution for violating
the act, initiated on November 6, 1975. The present appeal is
taken from the district court judgment following conviction on
the second charge of operating a motor vehicle wrecking facility
without a license.
Defendant challenges the constitutionality of section
69-6802 in this appeal. Specifically, he contends that this
statute unconstitutionally allows a taking of property without
due process and that the statute under which he was convicted is
an ex post facto law. Defendant also contends that the first
conviction for violating the statute was a bar to a second prose-
cution under the sane statute and he was therefore subjected to
double jeopardy.
Defendant contends that due process requires just com-
pensation to be given to a landowner whose use of his property
is restricted by the statute. The state argues the statute is
a valid exercise of its police power and that as such no com-
pensation need be given. Clearly, when the police power has
been properly invoked, compensation is not required. Atlantic
Coast Line R.R. Co. v. City of Goldsboro, 232 U.S. 548, 34
S.Ct. 364, 58 L.Ed. 721.
The license required when a person has four or more
junk vehicles at a single location constituting a motor vehicle
wrecking facility is not granted unless the vehicles are shielded
from public view, pursuant to M.A.C. 16-2.14(2)-S 14261.
Defendant's argument seems to be that the shielding re-
quirement is without foundation and therefore cannot support the
state's exercise of its police power.
On the other hand, the state contends its police power
is broad enough to include aesthetic considerations which under-
lie the shielding requirement, and therefore the statute is a
valid exercise of the state's police power.
Aesthetic considerations have supported an exercise of
the police power to force removal of roadside advertising with-
out compensation. Markham Advertising Company v. State, 73 Wash.2d
405, 439 P.2d 248, appeal dismissed 393 U.S. 316, reh-den. 393
U.S. 1112.
Other jurisdictions have taken the view that aesthetic
considerations alone may warrant the exercise of police power
with respect to motor vehicle junkyard requirements. Oregon City
v. Hartke, 240 Or. 35, 400 P.2d 255; X o t e n m g v. Fort Pierce,
(Fla. 1967) 202 So.2d 782; Racine County v. Plourde, 38 Wis.2d
Article 11, Section 3, 1972 Montana Constitution, declares
that the right to a "clean and healthful environment" is an in-
alienable right of a citizen of this state. consistent with this
statement and the cases cited, we hold that a legislative pur-
pose to preserve or enhance aesthetic values is a sufficient
basis for the state's exercise of its police power in section
69-6802 and M.A.C. 16-2.14(2)-S 14261.
Defendant alleges also that section 69-6802 is an ex
post facto law. However, he was charged with maintaining four
or more junked vehicles on his property after the statute was
in effect; he was not subjected to a penalty for having the
vehicles prior to that time. His contention therefore, that
this is an ex post facto application of the statute is ground-
less. In Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69
L.Ed 568, 570, the United States Supreme Court rejected de-
fendant's argument that his conviction under a law prohibiting
possession of liquor was invalid since his possession of the
liquor predated the effective date of the prohibition act. There
the court stated:
"This law is not an ex post facto law. It does
not provide a punishment for a past offense. It
does not fix a penalty for the owner for having
become possessed of the liquor. The penalty it
imposes is for continuing to possess the liquor
after the enactment of the law. * * *" 69 L.Ed.
570.
Applying this test to defendant's maintenance of his
vehicles, it is clear that there was no ex post facto application
of section 69-6802.
Neither is there merit in defendant's contention that
his conviction on the second charge of failure to license his
junk vehicle accumulation was constitutionally barred by the earlier
conviction for violating the same statute.
Defendant argues that his refusal to procure a license
or shield his property is a single, ongoing act for which he can
be prosecuted only once. In State v. Boe, 143 Mont. 141, 146, 388
P.2d 372, this Court stated with respect to the constitutional
protection against double jeopardy:
"The controlling word is offenses, it does
not refer to acts. "
One test used by this Court to measure the necessary
identity of offenses was enunciated in State v. Parmenter, 112
Mont. 312, 316, 116 P.2d 879. There the test was whether:
" * * * all the evidence relied upon to support
the conviction under the second information would
have been admissible and would have sustained a
conviction under the first information."
In the present case, the two separate complaints charged
distinct offenses. The second charge was based on defendant's
failure to have a license for a motor vehicle wrecking facility
on November 6, 1975. The first complaint alleged that he did not
have the necessary license on August 28, 1974. The prosecution
could not have known of the second offense at the time of charg-
ing defendant for the first offense. As the United States
Supreme Court stated in United States v. Ewell, 383 U.S. 116,
86 S.Ct. 773, 15 L ed 2d 627, 633, Fifth Amendment protection
against being twice put in jeopardy:
" * * * is not properly invoked to bar a second
prosecution unless the 'same offense' is involved
in both the first and the second trials.
" * * * If the two offenses are not, however,
the same, then the Double Jeopardy Clause by its
own terms does not prevent the current prosecution
* * * * I 1
Another question raised by defendant as a part of his
attack on the constitutionality of the statute under which he
was charged properly concerns the construction of the statute
as it applies to defendant's use of his property.
Defendant was charged with violating section 69-6802,
R.C.M. 1947, which provides in part:
"A person may not conduct, maintain, or operate
a motor vehicle wrecking facility without a
license issued by the department."
Section 69-6801(1), R.C.M. 1947, defines a motor
vehicle wrecking facility:
" (1) '14otor vehicle wrecking facility' means a
facility buying, selling, or dealing in four (4)
or more vehicles per year of a type required to
be licensed, for the purpose of wrecking, dis-
mantling, disassembling, or substantially changing
the form of the motor vehicle, or which buys or
sells integral secondhand parts or component
material thereof, in whole or in part, and deals
in secondhand motor vehicle parts. The term does
not include a garage where wrecked or disabled
motor vehicles are temporarily stored for a reason-
able period of time for inspection, repairs, or
subsequent removal to a junkyard."
Defendant concedes in this appeal, as he conceded at the
district court trial, that he possesses four or more junk vehicles
on his property. He testified that he has neither done business
at the site nor added or removed any vehicles since the statute
went into effect. Defendant argues that he was not operating a
motor vehicle wrecking facility.
In Cosgrove v. Industrial Indemnity Company, Mont .
, 552 P.2d 622, 624, 33 St.Rep. 675, this Court stated:
"In construing a statute, the Court must deter-
mine the plain meaning of the words used. The
language is to be interpreted in accordance with
its usual, ordinary, and accepted meaning, and
the intention of the legislature in enacting it
must be gathered from the language employed there-
in. Section 93-401-15, R.C.M. 1947; County of Hill
v. County of Liberty, 62 Mont. 15, 203 P. 500;
* * * State v. Midland Nat'l Bank, 132 Mont. 339,
317 P.2d 880."
Section 69-6801(1) states that a facility must "buy, sell,
or deal" in motor vehicles or parts or materials thereof to con-
stitute a "motor vehicle wrecking facility." This language is
not ambiguous. The legislature clearly intended to require
licensing of facilities at which business activity related to
junk vehicles is being carried on. The definition of "motor
vehicle wrecking facility" by its own terms does not include
mere accumulations of junk vehicles.
In analyzing the proof at the trial, we note:
"Possession at a single location, of four (4)
or more junk vehicles of a type required to be
licensed, is prima facie evidence that the
possessor is operating a motor vehicle wreck-
ing facility. " Section 69-6803 (I), R.C.M. 1947.
Additionally, the presence of between 60 and 100 junk vehicles
on defendant's property, unexplained, is some evidence of
"dealing" in junk motor vehicles within the meaning of section
69-6801 (I), R.C.M. 1947.
The opposing evidence consists solely of defendant's
testimony. In substance, defendant denied that he was "oper-
ating a wrecking yard"; stated that he had not "sold enough
parts in the last year to pay for a license"; and testified:
"Over the years I have sold a few parts now and
then when someone would contact me and come to
me. I have given some away and I have sold some
for a few dollars but not since this law has
gone into effect. 'I
Two different juries weighed this opposing evidence
and convicted the defendant of operating a motor vehicle wreck-
ing facility without a license. It is axiomatic that the function
of the jury is to determine the credibility of the witnesses
and the weight to be given their testimony and so resolve the
ultimate question of fact in this case, viz. did defendant
operate a motor vehicle wrecking facility? The jury resolved
this factual dispute by their verdict and we, as the appellate
court, will not interfere where as here, there is substantial
evidence to support the verdict.
Judgment affirmed.
Justice
Chief Justice
1 - 8 -
u............................
Justices
Mr. Justice Daniel J. Shea, dissenting:
I would reverse the conviction.
while I concur with the majority's findings that the Motor
vehicle Wrecking Facilities Act is constitutional, I do not agree
with the conclusion that there was "substantial credible evidence
to support the verdict."
The state brought forth no evidence at trial tending to
prove that defendant had bought, sold, or dealt in motor vehicles
or motor vehicle parts or materials since the effective date of the
act. Defendant's testimony, that he had done no business with re-
spect to his junk vehicle accumulation since the licensing requirement
went into effect, was wholly uncontradicted.
Granted, section 69-6803(1), R.C.M. 1947, creates a rebut-
table presun~ptionthat possession alone of four or more junk vehicles
at a single location is "prima facie evidence that the possessor is
operating a motor vehicle wrecking facility." However, I cannot
believe that this presumption of possession can operate to convict
one of something more than possession, that of conducting an ongoing
business of buying, selling, or dealing in wrecked motor vehicles
or used parts. Furthermore, the defendant did explain the presence
of the 60 to 100 vehicles, simply by stating that he had acquired
them all before the effective date of the statute. The state made
repeated attempts to get him to admit that he had done business
since the effective date of the act, and the defendant consistently
denied he had. Moreover, the state's chief witness, Mr. Schultz,
the sanitarian, in response to a question from the trial judge,
testified that he did not know whether defendant had acquired any
additional vehicles since the effective date of the statute.
Up until the passage of the laws herein, the defendant had
no duty to shield his cars from public view. He was entitled to keep
them there, however obnoxious or odious it might have been to the
aesthetic values of the public. It was only after the passage of
the act here complained of that there was a duty imposed on defendant
to do something about shielding his wrecked cars. If he carried on
a motor vehicle wrecking facility, he was required to get a license.
An administrative condition precedent to his obtaining a license
was that he shield his vehicles from public view. On the other hand,
if he did not operate a wrecking facility the state could still re-
quest him to shield his vehicles from public view. See section 69-
6810, R.C.M. 1947, and M.A.C. 16-2.14 (2)-S14261(2) (a). However, the
state chose to charge him with operating a motor vehicle wrecking
facility without a license. The record does not reveal whether the
state knew of the other option, to simply request him to shield his
property from public view.
The facts clearly demonstrate that the state did not prove
that after the effective date of the statute defendant was operating
a motor vehicle wrecking facility; that is, buying, selling or
dealing in wrecked vehicles or used parts.
The state relied exclusively on the presumption that the
possession of four or more wrecked vehicles at a single location
is translated into an ongoing business of w,selling, or dealing
in wrecked vehicles or used parts, and is, therefore, a motor vehicle
wrecking facility. The person charged with enforcing the statutes,
Terrence Schultz, the Lincoln County sanitarian, was the state's star
witness, and he did not even intimate that the defendant was engaged
in the buying, selling, or dealing in wrecked vehicles or used
parts after the effective date of the act. He testified he did not
know. And, after defendant rested his case, it would have been a
simple matter for the state to put witnesses on the stand testifying
to his business activity after the effective date of the statute, if
the state had the evidence. It is interesting to note here that
despite the several conversations between the defendant and the
sanitarian, the state could not elicit testimony from the sanitarian
that the defendant had admitted to him that he was buying, selling
or dealing after the effective date of the statute.
The only evidence was the uncontradicted testimony of defend-
ant that after the effective date of the act he did not buy, sell or
deal in wrecked motor vehicles or used parts. Other than by his own
testimony, how else could he establish that he was not operating a
wrecking facility? Certainly the state would have objected (and
probably successfully) to the defendant parading many witnesses on
the stand to establish negatively that they did not buy, sell or
deal with defendant after the effective date of the statute.
Defendant's conviction stands on the fact that he possessed
four or more junk vehicles at a single location within public view.
Under these circumstances it is shocking to allow a presumption of
possession convict defendant of a crime the heart of which is not
possession, but the active ongoing business of buying, selling, or
dealing in wrecked vehicles or used parts. This kind of presumption
has no place in the criminal law.