dissenting:
Though I concur in the decision of the majority of this Court to the extent that it holds that the constitutionality of the statute involved, Chapter 89, Article 23, Acts of the Legislature, Regular Session, 1959, may he determined in this proceeding for a declaratory judgment, and that the statute, in its application to the junk yard business and the property of the plaintiff with and on which it is operated, imposes arbitrary and unreasonable restrictions upon its use, I emphatically disagree with the decision to the extent that it upholds the constitutionality of the statute in its general scope and broad outline as a valid exercise of the police power of this State. I vigorously dissent from the holding of the majority because my considered judgment and firm conviction are that the restrictive provisions of the statute are not only arbitrary and unreasonable limitations of fundamental personal and property rights, but are also without, and do not bear, any substantial relation to the public health, safety, morals or general welfare, and that for that reason they do not constitute a valid exercise of the police power of this State.
The junk business which includes the operation of a junk yard and the activities of a junk dealer is recognized as a lawful business by the State and any person who engages in it, before so doing, must obtain a license and pay a tax for such license as prescribed by Section 31, Article 12, Chapter 11, Code, 1931, as amended by Section 31, Article 12, Chapter 119, Acts of the Legislature, Regular Session, 1939. That a junk yard is a legitimate business for which a license is required, is clearly established by the last mentioned statute. Moreover that statute is a revenue measure which prescribes the qualifications of persons who may obtain a license under the statute. That statute in the main constitutes a valid exercise of the taxing power, rather than the exercise of the police power of the State, al*51though the police power, of course, relates to the provisions which deal with criminal offenses and penalties. This is so, not because the statute applies to the junk business, but because the police power bears a substantial relation to criminal law and its enforcement. If the junk business were not a legitimate business the statute which subjects it to the payment of a license tax would be invalid and unenforceable as against public policy. In this jurisdiction the Legislature may not enact a statute which imposes a license tax upon a person who engages in the operation of an unlawful business. Thompson v. Hall, 104 W. Va. 76, 138 S. E. 579.
That the operation of a junk yard is a lawful business is generally recognized by the courts. Town of Vestal v. Bennett, 199 Misc. 41, 104 N. Y. S. 2d 830; City of New Orleans v. Southern Auto Wreckers, 193 La. 895, 192 So. 523; State v. Brown, 250 N. C. 54, 108 S. E. 2d 74. In Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A. L. R. 1454, on which the majority, in large measure, relies to sustain its palpably erroneous conclusion that the statute here under consideration is a valid exercise of the police power, this Court expressly recognized a junk yard as a lawful business and refused to enjoin its operation as a nuisance in a section of a city which was not a clearly established residential area. In that case, instead of condemning the lawful business of operating a junk yard, as does the majority purely on aesthetic grounds and because of its unsightliness, this Court, speaking through Judge Maxwell, whose opinion and distinguished judicial service the majority approves and justly extols, in appraising and describing a junk yard used this language: “An automobile junk yard is not necessarily an objectionable place. The business of buying old automobiles, wrecking them and selling serviceable parts as such and junking the residue is an honorable and useful business.”
The drastic statute, the validity of which is here involved, is not a revenue statute, as is Section 31, Article *5212, Chapter 11, Code, 1931, as amended by Section 31, Article 12, Chapter 119, Acts of the Legislature, Regular Session, 1939, but, on the contrary, is a statute which in effect prevents the operation of or destroys a lawful junk yard business located outside a municipality unless its owner or operator complies with the arbitrary and unreasonable location and fencing requirements which the statute imposes. In effect its enforcement constitutes a taking of the property of its owner without just compensation and deprives him of his property without due process of law. General Electric Company v. A. Dandy Appliance Company, Inc., 143 W. Va. 491, 103 S. E. 2d 310; State v. Memorial Gardens Development Corporation, 143 W. Va. 182, 101 S. E. 2d 425; Carter v. City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747; State ex rel. Johnson v. City of Charleston, 91 W. Va. 318, 112 S. E. 577; Fruth v. Board of Affairs, 75 W. Va. 456, 84 S. E. 105, L.R.A. 1915C 981; Arverne Bay Construction Company v. Thatcher, 278 N. Y. 222, 15 N. E. 2d 587, 117 A.L.R. 1110; Eaton v. Sweeny, 257 N. Y. 176, 177 N. E. 412; Wolff Packing Company v. Court of Industrial Relations, 262 U.S. 522, 43 S. Ct. 630, 67 L. Ed. 1103, 27 A.L.R. 1280; Nebbia v. People of State of New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A.L.R. 1469; Lakewood Express Service v. Public Utility Commissioners, 1 N. J. 45, 61 A. 2d 730.
I have no quarrel with the statement in the majority opinion concerning the nature and the source of the police power. The basis of my disagreement is that it does not apply to the junk yards mentioned in the statute. It is crystal clear to me that the provisions of the statute bear no real or substantial relation to the public health, safety, morals or the general welfare of the area affected. The police power of the State is an attribute of sovereignty which is co-extensive with the State. It is difficult to define because it can not be circumscribed by mere words; it is latent in its nature, yet, nevertheless, it exists perennially as a vast reservoir of authority to be exercised by the law-mak*53ing branch, of the government for the public good. Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832; The City of Huntington v. State Water Commission, 137 W. Va. 786, 73 S. E. 2d 833; Hayes v. The Town of Cedar Grove, 126 W. Va. 828, 30 S. E. 2d 726, 156 A.L.R. 702; Prager v. W. H. Chapman and Sons Company. 122 W. Va. 428, 9 S. E. 2d 880, 129 A.L.R. 1114; Nulter v. State Road Commission, 119 W. Va. 312, 193 S. E. 549, 194 S. E. 270; Chicago, Burlington and Quincy Railroad Company v. Illinois, 200 U.S. 561, 26 S. Ct. 341, 50 L. Ed. 596.
The police power is vested in the legislative branch of the government. It may be employed or delegated by the Legislature subject only to the control of the courts to the extent that they may properly act, and under the police power the Legislature may provide for the protection of the safety, health, morals and general welfare of the people. Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832; The City of Huntington v. State Water Commission, 137 W. Va. 786, 73 S. E. 2d 883; State ex rel. Morris v. West Virginia Racing Commission, 133 W. Va. 179, 55 S. E. 2d 263; Hayes v. The Town of Cedar Grove, 126 W. Va. 828, 30 S. E. 2d 726, 156 A.L.R. 702; State v. Burner, 126 W. Va. 280, 27 S. E. 2d 823; Prager v. W. H. Chapman and Sons Company, 122 W. Va. 428, 9 S. E. 2d 880, 129 A.L.R. 1114.
All legislation under the police power, however, must be within the constitutional inhibitions. General Electric Company v. A. Dandy Appliance Company, Inc., 143 W. Va. 491, 103 S. E. 2d 310; State v. Memorial Gardens Development Corporation, 143 W. Va. 182, 101 S. E. 2d 425; Milkint v. McNeeley, 113 W. Va. 804, 169 S. E. 790; Eubank v. City of Richmond, 226 U.S. 137, 33 S. Ct. 76, 57 L. Ed. 156. A statute or an ordinance may not, under the guise of the police power, impose arbitrary or unreasonable restrictions upon private property or the pursuit of useful activities, Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832; Carter v. City of Bluefield, 132 W. Va. 881, 54 S.E. *542d 747; Lawton v. Steele, 152 U. S. 133, 14 S. Ct. 499, 38 L. Ed. 385; Anderson v. Jester, 206 Iowa 452, 221 N. W. 354; Merrill v. City of Wheaton, 356 Ill. 457, 190 N. E. 918; and to be valid the statute or the ordinance mnst bear some real or substantial relation to the public health, safety, morals or general welfare of the area affected. Quesenberry v. Estep, 142 W. Va. 426, 95 S. E. 2d 832; Carter v. City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747; Nectow v. City of Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. Ed. 842; Women’s Kansas City St. Andrews Society v. Kansas City, Missouri, 8 Cir., 58 F. 2d 593; Hurst v. Burlingame, 207 Cal. 134, 277 P. 308; Forbes v. Hubbard, 348 Ill. 166, 180 N. E. 767; Sundlun v. Zoning Board of Review, 50 R. I. 108, 145 A. 451; Standard Oil Company v. City of Bowling Green, 244 Ky. 362, 50 S. W. 2d 960, 86 A. L. R. 648; Freeman v. Board of Adjustment, 97 Mont. 342, 34 P. 2d 534.
The statute here under review was clearly not intended by the Legislature to regulate or affect the public health, safety, morals or the general welfare of the people. Nowhere in the statute is public health, safety, morals or the general welfare referred to or even mentioned. The express purpose sought to be accomplished by the enactment of the statute, as clearly and expressly stated in Section 2, is solely to obscure or conceal from the designated highways the view of a junk yard by the use or employment of natural objects or the fence required by the statute and that is its sole and exclusive purpose. Of course, the view of the junk yard to be obscured or concealed is for the benefit of travelers on the highway, most of whom will consist of persons who possess no property rights or interests in the neighborhood that could in any way be affected by the presence of the junk yard, or of persons who as travelers from distant sections or localities in this State or other states are engaged in an uninterrupted trip or journey through the area. No other possible or reasonable meaning or effect can be derived from this provision of Section 1: “ ‘Fence’ *55shall mean an enclosure at least six feet in height so constructed and maintained as to obscure the junk in said enclosure from ordinary view to those persons passing upon the highways in this state.” (Emphasis supplied); or from these provisions of Section 2: “If a junk yard is operated or maintained within three hundred feet of any secondary highway the view thereof from such highway shall be obscured by natural objects or a fence as herein defined; Provided, however, that a dealer who was maintaining or operating a junk yard prior to January one, one thousand nine hundred fifty-nine, outside a municipality shall be granted a license if his junk yard is operated or maintained more than one hundred feet from any primary, interstate or secondary highway right-of-way and the view thereof from such highway is obscured by natural objects as herein defined.” (Emphasis supplied). If the foregoing language of the statute means anything there can be no doubt that all the Legislature sought to do by enacting this statute was merely to keep transient travelers on the highway from seeing an ugly, unsightly and unpopular, but not a dangerous, or an immoral or an unhealthful, junk yard while proceeding at varying speeds along the highway on foot, on horseback, or by motor vehicle to pass through the area. If the traveler on the highway, whether he be a transient or a resident of the area, wants to look at a junk yard, he should not be deprived of his personal right to do so by solemn legislative fiat and if he does not want to do so, such action is not only entirely unnecessary but to me, to say the least, trivial in the extreme, and violates the universally recognized presumption that the Legislature did not intend to do “a void and useless thing.” Williams v. Commonwealth, 190 Va. 280, 56 S. E. 2d 537; 82 C.J.S., Statutes, Section 316.
In short, and to me, beyond all question of a doubt, the sole and only ground on which the restrictive provisions of the statute can be based or justified is to avoid offending, because of the aesthetic element involved, persons of varying degrees of sensibility who *56might, but for the compliance with the requirement of tbe statute, happen to look at an ugly junk yard beside a roadway upon which they might he traveling at the time. This accomplishment certainly indicates an unusual amount of concern for the transient user of the highway, but manifests no consideration or regard for the consequent inevitable invasion of the fundamental personal and property rights of the owners and operators of the unsightly and unpopular junk yards who are permanent and useful citizens and residents of the State engaged in the operation and maintenance of a lawful business enterprise in which they have made substantial investments and for which they hold a license and pay a tax.
There is nothing in the record of this proceeding that indicates or charges that the junk yards to which the provisions of the statute apply are unsafe, immoral, or detrimental to the health or the general welfare of the community in which any of them is located. No provision of the statute mentions or refers to the public safety, morality, health or general welfare with respect to the location or the operation of the junk yard to which it applies. As far as the restrictive provisions of the statute are concerned, if the owner or the operator of a junk yard obscures or conceals it from the view of persons traveling upon the highways by the use of natural objects or the fence required for that purpose and locates the junk yard at the distance from the highway designated by the statute, he can operate his establishment in any manner he may choose, even in a manner that will impair or contravene the public health, safety, morals or the general welfare of the community. When he has located his junk yard and constructed the fence or used the natural objects in the manner required by the statute his junk yard will be just as safe or unsafe, just as moral or immoral, and just as healthful or unhealthful, as it was or would have been if he had not located it or made use of the natural objects or built the fence in accordance with the requirements of the statute. Certainly *57further comment is unnecessary to show conclusively that the requirements of the restrictive provisions of the statute bear absolutely no substantial relation to the public health, safety, morals or general welfare of the community which singly or together are essential to justify the exercise of the police power of the State. I repeat that the only factor to which the provisions of the statute actually and in fact apply is the vague, ambiguous, uncertain, indefinable aesthetic factor for the determination of which in any given set of circumstances no suitable standard is or may be clearly fixed or established. "Whether a particular activity is desirable or undesirable, or is or is not offensive to the sensibilities of different persons of varying social, artistic or cultural environment or development is and will remain a debatable and highly controversial question as long as people exercise their fundamental right to adopt and follow their individual tastes and preferences with respect to subjects which involve the aesthetic factor or element. That is why this Court, until the present decision, and the courts, in general, have consistently rejected the aesthetic factor, while standing alone, as the basis for the valid exercise of the police power of the State.
As I have demonstrated, a junk yard is a lawful licensed business, a business which Judge Maxwell, to whom the majority has referred, has characterized as “an honorable and useful business,” in expressly rejecting the aesthetic factor as the ground or basis for enjoining the operation of a junk yard as a nuisance at the instance of plaintiffs who asserted that the operation of the junk yard violated their personal and property rights. That decision was . reached in Parkersburg Building Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A.L.R. 1454, a ease which involved only the jusidietion of a court of equity to abate a nuisance and in which the exercise of the police power was not involved or considered or determined. The business of operating a junk yard is also recognized by the courts that con*58stitute the decided weight of judicial authority as a business which is not inherently dangerous, immoral, or offensive to the public health or general welfare. This proposition is not entirely rejected by the majority but apparently is accepted with the qualification that “Dealers in secondhand articles, and particularly junk yards, are constantly receiving stolen goods, either innocently or otherwise.”, and the approval of the statement in the brief of the defendant that “It is well established that disabled and junked automobiles most generally retain quantities of gasoline and oil which produce a fire hazard or a trap for children playing with fire.” I dismiss these qualifying quotations with the comment that any legitimate automobile or machine repair business or any legitimate agency engaged in the purchase or sale of secondhand materials, which obviously is not within the police power of the State, may be similarly accused. For instance a grist mill through improper operation may become infested with rats or other vermin which render it unsanitary, a planing mill, lumber yard or furniture manufacturing plant may become, by the accumulation of inflammable or combustible material, an unsafe fire hazard, or an apartment or a residence may be used for gambling or lewd and immoral or other criminal purposes; but surely it can not be that any of these instrumentalities is subject to the exercise of the police power.
The unsafe, immoral or health endangering operation by a person who engages in such practices, however, is not an inherent fault of the business, but the fault of the operator, and does not condemn or render it inherently unlawful as an enterprise. Of course, if the operator of any business engages in criminal activities or conducts it in a manner that injures the public health, safety, morals or general welfare he can and should be prosecuted under existing law or the operation of the business in that manner may be enjoined as a nuisance by a court of equity. But no such improper or unlawful operation of the junk yards to which the statute here under review applies is involved *59or presented in this proceeding and any reference of that character with respect to the junk business in the majority opinion is entirely irrelevent and purely gratituous, and is not pertinent in the determination of the question of the validity of the statute as a proper exercise of the police power of the State.
In a well considered case which is in accord with the clear weight of authority concerning the generally recognized character of the junk business, State v. Brown, 250 N. C. 54, 108 S. E. 2d 74, decided as recently as April 8, 1959, the Supreme Court of North Carolina, quoting from the opinion in City of New Orleans v. Southern Auto Wreckers, 193 La. 895, 192 So. 523, said “Dealing in junk is a legitimate and harmless business. Junk yards are not necessarily nuisances. They do not affect the public health, nor do they offend against public morals. Individuals have the constitutional right to use their private property for junk yards so long as such use does not offend public morals or jeopardize the health and safety of the public. In speaking of the right of individuals who use their private property as they see fit, so long as their use of it is not offensive or dangerous, it is stated in American Jurisprudence, Volume 11, Sec. 279, p. 1037: ‘Nevertheless, the owner has the right to erect such structures or to use the property for such legitimate purposes as he may see fit, utilizing such portions of it as he pleases, so long as in so doing he in no manner injuriously affects the public health, safety, morals, and general welfare. Any law abridging rights to a use of property, which use does not infringe the rights of others, or limiting the use of property beyond what is necessary to provide for the welfare and general security of the public is not a valid exercise of the police power.’ ” In Town of Vestel v. Bennett, 199 Misc. 41, 104 N.Y.S. 2d 830, the court used this language : “It is difficult to imagine what danger to public health, morals or safety exists in connection with the operation of a junk yard on an unenclosed lot that could be removed or prevented by the erection of a *60solid board fence six feet high. Certainly there is nothing immoral about a junk yard. Neither does it constitute any menace to public health or if, by reason of unsanitary conditions being permitted, it should be come a menace, putting a board fence around it could not be a reasonable solution of the problem. No danger to public safety is apparent except that materials from the yard might find their way on to the highway if piled too close, but to prevent this a solid board fence would not be required as was pointed out in the case of the City of New Orleans v. Southern Auto Wrechers, 193 La. 895, 192 So. 523.” The statute here under review does not relate to or deal with any obstruction of a public highway by any of the contents of a junk yard and no such purpose is involved in connection with the requirement that such yard be located at designated distances from the highway. Of course, the police power applies to a public highway and the manner of its use or obstruction for the obvious reason that the operation and maintenance of the public highway directly relates to the public safety and the general welfare of the community which it serves and through which it passes.
I challenge the soundness of the statement in the majority opinion that “We can not say that the legislature was unjustified under its police power, based upon considerations heretofore considered herein, in the enactment of the statute in controversy, including the set-back provisions and those relating to fences. No doubt the legislature took into consideration, among all other factors, an effort to promote public pride and public spirit, both on a statewide and local basis, and also a plan and purpose to promote efforts to attract to the state tourists and other travelers on our highways with a view of promoting the economic well-being and general welfare.” (Emphasis supplied). This statement, in its entirety, will not bear even reasonably close scrutiny or analysis for, as I have demonstrated, no factor involving public health, safety, morals, or the general welfare, or any factor, other *61than the aesthetic factor, which includes the quoted elements of “public pride and public spirit”, was considered by the Legislature in the enactment of the statute, as the statute itself and most of the quoted statement from the opinion of the majority clearly indicate. It should be perfectly obvious to any reasonably intelligent person that any improvements such as a new mercantile establishment, an industrial or manufacturing plant, an apartment building, or a few spacious residences will promote the “economic well being” of a community, hut it should also he just as clear to any court that none of such instrumentalities is subject to the exercise of the police power of the State; for if any of them is within the police power it applies to every kind of activity and, though we all know it does not so apply, its exercise can not he restricted even by the constitutional limitations of due process and the taking of private property without just compensation.
The obvious confusion and the palpable error in the majority opinion stem in large measure from the failure of the majority to recognize the material and fundamental difference between the judicial power of a court of equity, in a proper case at the instance only of persons whose personal or property rights are invaded by the operation of an instrumentality, to declare such instrumentality a nuisance and to abate and enjoin its operation as such, and the power of the legislative branch of the government to exercise the police power of the State. This manifest confusion is indeed surprising in view of the use of a quotation from the concurring opinion of Judge Kenna in Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A.L.R. 1454, which clearly emphasizes that distinction. As adopted with approval in the majority opinion, that quotation is: “ There is to my mind a clear and most decided difference between direct control by the courts through the process of injunction on the one hand, and the control exercised by the legislative branch through the use of the police power on the other.”
*62Many of the cases cited in the majority opinion in support of its decision in this case are cases in which the jurisdiction of a court of equity was invoked by a property owner to abate or enjoin an alleged nuisance on the ground that its operation invaded the personal or property rights of the person who sought that type of equitable relief. Martin v. Williams, 141 W. Va. 595, 93 S. E. 2d 835, and Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A.L.R. 1454, which are two of the three cases on which the majority expressly and mainly relies to support its conclusion, were suits in equity in which the plaintiff sought to abate the operation of a particular lawful business as a nuisance. In neither case was the valid exercise of the police power involved, or carefully considered, or determined.
In the Parkersburg case this Court refused to enjoin the operation of a junk yard in a section of the city of Parkersburg which was not clearly established as a residential community and, though stating in the opinion that “Courts must not be indifferent to the truth that within essential limitations aesthetics has a proper place in community affairs of modern society.”, without specifying the extent of such “proper place”, expressly rejected the aesthetic factor, even in a nuisance case, as the sole ground for injunctive relief with respect to an alleged nuisance. In that case other essential factors, such as noise, dust, or unwholesome odors, were absent, and this Court expressly held in the syllabus that “Where a section of a city is not a clearly established residential community, equity will not be warranted in excluding therefrom as a nuisance an automobile wrecking business merely on the ground of unsightliness.” Thus the factor of aesthetics, when first sympathetically dealt with by this Court, as mere obiter dicta, was utterly rejected as a ground for equitable relief in a case which did not involve the exercise of the police power but involved instead the abatement of an alleged nuisance. How this case can be converted to, or be seriously considered as, authority for the valid exercise of the police power in this proceeding in *63the face of its holding that the aesthetic factor alone did not constitute a ground for even injunctive relief in equity is to me entirely incomprehensible.
The Martin case was also a suit in equity to abate an alleged nuisance and in it the exercise of the police power was likewise not involved, considered or determined. In that case the main elements on which in-junctive relief was sought, and granted, against the operation of a used car lot alleged to be a private nuisance in a predominantly residential community were loud noises at night and during early hours of the morning and the projection of excessive rays of bright light into the costly homes of the plaintiffs which disturbed their sleep and comfort. Though it is true that a portion of the equipment on the lot presented what the plaintiffs asserted was a garish and unsightly appearance for that particular neighborhood and that the aesthetic factor was to that extent involved and taken into consideration in the decision of the case, the basis on which injunctive relief was granted was the annoyance caused by noise and light in combination with the aesthetic factor, which of itself was not regarded as a sufficient or independent ground upon which to grant injunctive relief. It is clear that in that case, if the aesthetic factor had been missing, the relief sought would have been granted. I thought then, and I think now, that the decision, which was by a divided court in that case, was contrary to the prior decisions of this Court and clearly wrong for the reasons set forth at length in the dissenting opinion which I filed in that ease. But whether that decision be regarded as clearly right or clearly wrong, it can not be regarded as authority to sustain the constitutionality of the statute here under review as a valid exercise of the police power of the State.
The cases of Ritz v. The Woman’s Club of Charleston, 114 W Va. 675, 173 S. E. 564, and Snyder v. Cabell, 29 W. Va. 48, 1 S. E. 241, cited and discussed and apparently relied upon by the majority, were suits in equity by real estate owners to enjoin an alleged nuis-*64anee which violated the personal and property rights of the plaintiffs. In each case injunctive relief was granted.
In the Snyder case the noise which resulted from the operation of a skating rink deprived the persons occupying two of the homes of the plaintiffs of sleep and rest, materially disturbed their comfort and the enjoyment of their homes, and compelled one of the plaintiffs to leave and vacate his residence.
In the Bits case the dances at night permitted by the defendant at its club house near the residence of the plaintiffs were attended by many persons who engaged in noisy, drunken and unseemly conduct which deprived the plaintiffs of rest and sleep.
In each of those cases noise was the sole basis for the relief awarded the plaintiffs. No aesthetic factor or question with respect to the exercise of the police power was involved or even discussed or mentioned in either case. As those cases do not in any way involve the application of the police power of the State there was no reason to cite and discuss them in the majority opinion; and the reference to them merely confuses the real issue and demonstrates the failure of the majority to recognize the distinction, emphasized by Judge Ken-na in the Parkersburg case, between the jurisdiction of equity to enjoin a nuisance and the exercise of the police power by the legislative branch of the government.
In its labored and utterly fruitless effort to find and apply any prior decision of this Court to support its action in upholding the constitutionality of the statute here under review, except as to its arbitrary and unreasonable application to the property of the plaintiff, the majority, in its decision, embodies these surprisingly inapplicable, ambiguous and legally and factually erroneous statements: “Parkersburg Builders Material Company v. Barrack, supra, Carter v. City of Bluefield, supra, and Martin v. Williams, supra, are the most recent decisions of this Court bearing directly *65on the question of the weight which may be given to aesthetics and related considerations in the exercise of the police power; and they are, therefore, the most appropriate precedents for our consideration to be found among the prior decisions of this Court. It is obvious that they are adequate to support the validity of a legislative enactment based on an exercise of the police power if it appears that such enactment may reasonably be predicated on considerations of noise, unsightliness, a thing visually offensive, a tendency to depress neighborhood property values, and an interference with the use, comfort and enjoyment of surrounding residential properties. To say the very least, the prior decisions of this Court are authority for the proposition that unsightliness may be considered with other proper factors in upholding a legislative enactment based on an exercise of the police power.” As to that part of the foregoing statement which cites the Parkersburg, Garter and Martin cases as supporting authority with respect to the factor of aesthetics in the exercise of the police power, the cited cases completely refute and destroy its meaning and effect. As I have already pointed out, the Parkersburg and Martin cases, involved the right of persons, whose personal and property rights were involved, to injunctive relief against a private nuisance and did not involve the exercise of the police power whieh was not raised or presented and was not even considered or discussed as a point of decision. In the Parkersburg case, though the aesthetic factor was given sympathetic consideration by statements which were merely obiter dicta, that factor, standing alone, as it clearly does in the case at bar, was expressly rejected as a ground of injunctive relief in the abatement of a private nuisance and, of course, it was not recognized as a basis for the exercise of the police power. In the Martin ease the aesthetic factor, which was obviously less important than the main factors of noise and excessive light, was considered and discussed, but the elements of noise and light were the basis for the award of injunctive relief; and there is no pronouncement in that case, in which *66the exercise of the police power was not involved or considered, to indicate that the relief granted would have been awarded if the aesthetic factor alone and not in combination with the elements of noise and light, had constituted the sole gronnd for injunctive relief.
In Carter v. City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747, in which I prepared the unanimous opinion of this Court, the exercise of the police power was involved by virtue of the enactment of a zoning ordinance by the City of Bluefield. In that case the validity of the ordinance was upheld to the extent that the restrictions imposed by it were not arbitrary or unreasonable and bore a substantial relation to the public health, safety, morals or the general welfare of the municipality, point 7 of the syllabus; but to the extent that its restrictions, in their application to the property of the plaintiffs, did not bear a substantial relation to the public health, safety, morals or general welfare of the municipality, and were arbitrary and unreasonable in depriving the plaintiffs of the beneficial use of their property and in substantially depreciating its value, the ordinance was held to be invalid as violative of Sections 9 and 10, Article III of the Constitution of this State and the Fourteenth Amendment to the Constitution of the United States; point 9 of the syllabus. In the Carter case aesthetics, as the basis for the exercise of the police power, was not involved, presented, considered or even discussed. For that reason that decision is utterly without application to the ease at bar and can not reasonably be considered as authority in support of the conclusion reached by the majority. In the Carter case the zoning ordinance, in its general scope and broad outline, was upheld, as zoning ordinances, since the decision by the Supreme Court of the United States in Village of Euclid v. Ambler Realty Company, 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016, in 1926, generally have been upheld, not because of the presence of the aesthetic factor which clearly and by its very nature, does not directly affect the public health, safety, morals or general wel*67fare, but because zoning ordinances which, deal with and regulate the development and maintenance of substantial community areas necessarily do bear a substantial relation to the public health, safety, morals and general welfare of the territory to which they apply. In the opinion in the Carter case, stating the reason for upholding the validity of the ordinance in its general scope and broad outline, this Court said:
“Since the decision of the Supreme Court of the United States in the leading case of Village of Euclid v. Ambler Realty Company, 272 U. S. 365, 47 S. Ct. 114, 71 L. ed. 303, 54 A.L.R. 1016, zoning ordinances establishing residential districts from which business and trade of every kind are excluded have been widely recognized as valid with respect to their general scope and dominant features as a proper exercise of the police power of the State. See Annotations, 86 A.L.R. 659 and 117 A.L.R. 1119 and the cases cited. Such ordinances, however, are justified only by the exercise of some aspect of the police power in the interest of the public, State ex rel. Seattle Title Trust Company v. Roberge, 278 U. S. 116, 49 S. Ct. 50, 73 L. ed. 210, 86 A.L.R. 654; Dowsey v. Village of Kensington, 257 N. Y. 221, 177 N. E. 426, 86 A.L.R. 642; and to be valid they must bear some real or substantial relation to the public health, safety, morals, or the general welfare of the area affected. Nectow v. City of Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. ed. 842; Women’s Kansas City St. Andrews Society v. Kansas City, Missouri, (C.C.A. 8th) 58 F. 2d 593; Hurst v. Burlingame, 207 Cal. 134, 277 P. 308; Forbes v. Hubbard, 348 Ill. 166, 180 N. E. 767; Sundlun v. Zoning Board of Review, 50 R. I. 108, 145 A. 451; Standard Oil Company v. City of Bowling Green, 244 Ky. 362, 50 S. W. 2d 960, 86 A.L.R. 648; Freeman v. Board of Adjustment, 97 Mont. 342, 34 P. 2d 534.
“A statute or an ordinance may not, however, under the guise of the police power, impose arbitrary or unreasonable restrictions upon the use of private property or the pursuit of useful activities. Lawton v. *68Steele, 152 U. S. 133, 14 S. Ct. 499, 38 L. ed. 385; Andeson v. Jester, 206 Iowa 452, 221 N. W. 354; Merrill v. City of Wheaton, 356 Ill. 457, 190 N. E. 918. * * *.
‘ ‘ The power to interfere by zoning regulations with the general rights of a landowner by restricting the character of his use is not unlimited and a restriction can not be imposed unless it bears a substantial relation to the public health, safety, morals or the general welfare. Nectow v. City of Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. ed. 842. Private property may not be taken without compensation, even for a public purpose or to advance the general welfare. Arverne Bay Construction Company v. Thatcher, 278 N. Y. 222, 15 N. E. 2d 587, 117 A.L.R. 1110; Eaton v. Sweeny, 257 N. Y. 176, 177 N.E. 412.”
From the foregoing it should be obvious that the statute here under review is not, and bears no resemblance to, a zoning statute or ordinance and that, contrary to the statements in a portion of the above mentioned quotation in the majority opinion, none of the factors of noise, unsightliness, or interference with the use, comfort and enjoyment of surrounding residential properties was involved or considered in determining the validity of the zoning ordinance in the Carter case, or in any prior decision of this Court in which the exercise of the police power was upheld as valid. On the contrary in all its prior decisions this Court has consistently and without exception held that the aesthetic factor alone, which bears no substantial relation to the public health, safety, morals or general welfare, will not support or justify the exercise of the police power of the State. Fruth v. Board of Affairs, 75 W. Va. 456, 84 S. E. 105, L.R.A. 1915C 981; State ex rel. Sale v. Stahlman, 81 W. Va. 335, 94 S. E. 497; State ex rel. Nunley v. Mayor and City Council of the City of Montgomery, 94 W. Va. 189, 117 S. E. 888.
As the decision in the Carter case is completely contrary to the decision in the case at bar, to the extent that it upholds the constitutionality of the statute in *69its general scope and broad outline, it is difficult to understand why the Garter case should be cited as supporting authority for the present decision.
In Fruth v. Board of Affairs, 75 W. Va. 456, 84 S. E. 105, L.R.A. 1915C 981, a case involving the exercise of the police power under an ordinance of the City of Charleston, this Court held in point 3 of the syllabus that “An ordinance of a municipal corporation ordained pursuant to a provision of its charter authorizing it, establishing a building line on a certain street and inhibiting abutting owners from encroaching thereon, based on merely aesthetic considerations, is not within the police power, and is unenforceable as a police regulation.” In the unanimous opinion, referring to Freund on Police Power, this Court said: ‘ ‘ The sections of Mr. Freund, particularly applicable to the case at bar, where the purposes of the statute and ordinance are aesthetic and not to provide for the safety, health and morals of the public in general, are sections 180 and 181. These latter sections say, in accordance with the holdings of the courts everywhere, that for mere beauty and symmetry of the streets, or for mere aesthetic purposes, having no reference to the safety, health, morals or general welfare of the community at large, the state may not under the police power regulate or control the use by the owner of private property; that such right of regulation if exercised at all must be done under the power of eminent domain, and within constitutional limitations requiring just compensation to be paid for the taking or damaging of private property. ’ ’
In State ex rel. Sale v. Stahlman, 81 W. Va. 335, 94 S. E. 497, this Court held in point 1 of the syllabus that under the provisions of a city charter authorizing it to regulate the height, construction and inspection of new buildings erected within its corporate limits, a city can not prevent the owner of a lot, situated in a built up section and between three and four story buildings, from erecting a one story building on such lot, by refusal of permission to erect such buildings. It also said *70in points 4 and 5 of the syllabus that “A limitation upon an owner’s use of his property cannot be imposed by law, for the benefit of other property owners.”, and “Nor can it be imposed only to effect symmetry or ornamentation of a city, street or section, otherwise than under the power of eminent domain, allowing compensation, if at all.” The opinion in that case contains these paragraphs:
“Ordinarily, such charter provisions confer power to limit or restrict the height of buildings, not to require it, as a means of promotion or conservation of the value of adjacent or neighboring property or attainment of aesthetic ideals or purposes of the community or municipal authorities, and their justification and validity rest upon the police power of the state, under which the legislature may directly or indirectly provide for the public health, morals, safety, convenience and prosperity. Welch v. Swasey, 193 Mass. 364; Commonwealth v. Boston Advertising Co., 188 Mass. 348; People v. D’Onech, 111 N. Y. 359; Fruth v. Board of Affairs, 75 W. Va. 457; Eubank v. Richmond, 226 U. S. 137; District of Columbia v. Brooks, 214 U. S. 138; C. B. & Q. Railway Co. v. Drainage Commissioners, 200 U. S. 561.” and
“The power and authority over the relators’ property, claimed by the city, if allowed by law, would be a serious restraint upon his right of use and enjoyment. It cannot be imposed for the benefit of adjacent or neighboring property owners. Eubank v. Richmond, cited. Nor can it be imposed to effect symmetry of the city, street or section, otherwise than under the power of eminent domain, allowing compensation, if at all. Fruth v. Board of Affairs, cited. ”
In State ex rel. Nunley v. Mayor and City Council of the City of Montgomery, 94 W. Va. 189, 117 S. E. 888, this Court reaffirmed its holding in the Fruth and State ex rel. Sale v. Stahlman cases and held that the unsightliness of a proposed garage would not justify its prevention under a municipal ordinance based on the police power.
*71The majority opinion, thongh citing the three cases last cited, does not analyze them or recognize their force and effect as well considered binding authority to be followed and adhered to by this Court. Instead the majority opinion undertakes to circumvent or disregard those decisions by the obviously inept and unjustified suggestion that “it is not without basis to assert that Fruth v. Board of Affairs, supra, dealing with municipal building lines and State v. Stahlman, supra, dealing with municipal regulation of the height of buildings in business districts, have been superseded and outmoded, in some measure at least, by Village of Euclid v. Ambler Realty Co., and Carter v. City of Bluefield, supra, which upheld the validity of zoning ordinances.” First, it should be perfectly obvious that a solemn judicial pronouncement relating to fundamental constitutional rights and guarantees, such as the Fruth and State ex rel. Sale v. Stahlman cases, unlike a worn out machine or mechanical device or current fashions in personal attire, never becomes “outmoded.” Instead it endures and directly affects the operation of government without regard to the period of its existence, until it is superseded, overruled or modified by a subsequent decision of the same or another court of competent jurisdiction, or is rendered ineffective by valid legislation. Nothing of that kind has happened to the three purportedly “outmoded” cases. On the contrary, they have been cited with approval in later related cases and none of them has ever been criticized, modified or departed from in any subsequent decision of this Court except the decision of the majority in the instant proceeding. Secondly, there is not the slightest conflict or inconsistency between them and Village of Euclid v. Ambler Realty Company, 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016, and Carter v. City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747, for the reasons already indicated, which are that the zoning ordinances under consideration in the Village of Euclid and Carter eases bore a real and substantial relation to the public health, safety, morals or general welfare of the community *72affected, and in tlie Fruth, State ex rel. Sale v. Stahlman and State ex rel. Nunley v. Mayor and City Council of the City of Montgomery cases the aesthetic factor did not hear a substantial relation to the public health, safety, morals, or general welfare which justified the valid exercise of the police power. Instead of overruling, modifying, or criticizing the Fruth case, this Court cited it with approval in its opinion in the Carter case on which, surprising to relate, the majority relies to support its decision in this proceeding.
The three above mentioned cases are not only correct and sound in principle but are also completely in accord with the decisions of appellate courts in other jurisdictions which constitute the clear weight of judicial authority and which hold that aesthetics alone does not justify the exercise of the police power, that the valid exercise of that broad and far-reaching attribute of sovereignty must always bear a real or substantial relation to the public health, safety, morals or general welfare, and that aesthetics alone does not bear that relation to those essential factors. Many decisions of other appellate courts which so hold could be cited but these three which are directly in point will suffice: Little Pep Delmonico Restaurant, Inc. v. City of Charlotte, 252 N. C. 324, 113 8. E. 2d 422; State v. Brown, 250 S. C. 54, 108 S. E. 2d 74; City of New Orleans v. Southern Auto Wreckers, 193 La. 895, 192 So. 523.
In Little Pep Delmonico Restaurant, Inc. v. City of Charlotte, 252 N. C. 324, 113 S. E. 2d 422, the North Carolina Supreme Court, adhering to the decided weight of authority, used this language: ‘ ‘ Courts are properly hesitant to interfere with a legislative body when it purports to act under the police power, but the exercise of that power must rest on something more substantial than mere aesthetic considerations. If it appears that the ordinance is arbitrary, discriminatory, and based solely on aesthetic considerations, the court will not hesitate to declare the ordinance invald. State v. Brown, 250 N. C. 54, 108 S. E. 2d 74; In re *73O’Neal, 243 N. C. 714, 92 S. E. 2d 189; State v. Staples, 157 N. C. 637, 73 S. E. 112, 37 L.R.A., N. S., 696; Barger v. Smith, 156 N. C. 323, 72 S. E. 376; State v. Whitlock, 149 N. C. 542, 63 S. E. 123; 37 Am. Jar. 967-968.”
I regard as anfortanate the ansoand and inaccarate statements in the majority opinion to the effect that the property of the plaintiff, and by inference the property of the other persons affected, has not been taken, that his and their basinesses have not been prohibited, and that he still has his property, may make a restricted ase of his jahk basiness, devote it to other ases, or remove it to another location. If the intended meaning of the foregoing langaage is that a statate which deprives its owner of the ase or enjoyment of his property in its entirety or restricts the beneficial ase of his property, so long as he retains its physical possession, does not constitate a taking, within the meaning of the provisions of the Constitation of this State and the Federal Constitation, it is contrary to all of the coantless well considered decisions in the field of constitational law which withoat exception recognize and aphold the express gaarantees that private property shall not be taken or damaged withoat jast compensation and that no person shall be deprived of life, liberty or property withoat dae process of law. This Coart has aniformly held in many cases, which accord with coantless decisions of the coarts in other jarisdictions in this coantry, that the sabstantial interference with the owner’s beneficial ase of his property and the serioas depreciation in its valae which resalt from a statate or an ordinance which does not bear a sabstantial relation to the pablic health, safety, morals or general welfare, constitate a taking of private property withoat compensation in violation of Section 9, Article III of the Constitation of this State, and deprive the owner of his property withoat dae process of law in violation of Section 10, Article III of the Constitation of this State and the Foarteenth Amendment to the Constitation of the United States. General Electric Company v. A. Dandy Appliance Company, 143 *74W. Va. 491, 103 S. E. 2d 425; State v. Memorial Gardens Development Corporation, 143 W. Va. 182, 101 S. E. 2d 425; Carter v. City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747; State ex rel. Johnson v. City of Charleston, 91 W. Va. 318, 112 S. E. 577; Fruth v. Board of Affairs, 75 W. Va. 456, 84 S. E. 105, L.R.A. 1915C 981.
In Garter v. City of Bluefield, 132 W. Va. 881, 54 S. E. 2d 747, this Court held in point 9 of the syllabus that: “A zoning ordinance of a municipality, creating use districts and imposing restrictions upon the use of property in the various districts, which, as applied to particular property, does not bear a substantial relation to the public health, safety, morals, or the general welfare of the municipality, and is clearly arbitrary and unreasonable in depriving the owner of the beneficial use of his property and in substantially depreciating its value, is, as to such property, invalid as violative of Sections 9 and 10, Article III of the Constitution of this State and the Fourteenth Amendment to the Constitution of the United States.”
In the opinion in the Carter case this Court used this pertinent language: “In short, the restrictions imposed by the ordinance damage the land of the petitioners as much as four fifths of its real and actual worth and seriously interfere with its proper enjoyment for business purposes for which it is best suited. The substantial interference with the beneficial use of their land and the serious depreciation in its value which result from the ordinance amount to a taking of private property without compensation, Fruth v. Board of Affairs, 75 W. Va. 456, 84 S. E. 105, L.R.A. 1915C, 981; State ex rel. Johnson v. City of Charleston, 91 W. Va. 318, 112 S. E. 577, and, in consequence, the ordinance, in its application to the property of the petitioners, violates Section 9, Article III of the Constitution of this State. This interference in its use and this depreciation in its value also deprive the petitioners of their property without due process of law and deny them the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of *75tlie United States. Wolff Packing Company v. Court of Industrial Relations, 262 U. S. 522, 43 S. Ct. 630, 67 L. ed. 1103, 27 A.L.R. 1280; Nebbia v. People of State of New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. ed. 940, 89 A.L.R. 1469; Lakewood Express Service v. Board of Public Utility Commissioners, N. J., 61 A. 2d 730.”
In State ex rel. Johnson v. City of Charleston, 91 W. Va. 318, 112 S. E. 577, this Conrt held in point 2 of the syllabus that when a land owner complies with the building requirements imposed by a municipal ordinance, the city authorities can not arbitrarily refuse the land owner a building permit without a valid excuse for such refusal; ‘ ‘ otherwise, the owner is deprived of the beneficial use of and dominion over his land, and the refusal is tantamount to taking the land without compensation and without due process of law.”
In the leading case of Fruth v. Board of Affairs, 75 W. Va. 456, 84 S. E. 105, L.R.A. 1915C 981, which has not only not been “superseded” or “outmoded”, or even criticized, but has been adhered to and cited with approval by this Court in its subsequent decisions and represents the established law of this State, this Court held in point 2 of the syllabus that “Wherefore anything done by a state or its delegated agent, as a municipality, which substantially interferes with the beneficial use of land, depriving the owner of lawful dominion over it or any part of it, and not within the general police power of the state, is the taking or damaging of private property without compensation inhibited by the Constitution.” In the opinion this Court reached the sound conclusion, then and now supported by the clear weight of judicial authority, that “ * * * we should not go counter to the great weight of authority and take advanced ground on the question of the police power to regulate and control the use of private property, based on mere aesthetic ground and having no reasonable reference to the safety, health, morals and general welfare of the people at large.” As the construction of a fence or the relocation of a junk yard at designated distances from a highway, *76as required by the statute, involves a mere aesthetic factor which manifestly bears no reasonable relation to the public health, safety, morals, or the general welfare, the legal principle enunciated in the last quoted statement should have been applied with controlling-force in the decision of this case.
Reference to and studied consideration of the prior decisions of this Court, involving the award of in-junctive relief to a person whose personal or property right is violated or invaded by the maintenance of a nuisance and of the prior decisions of this Court involving the exercise of the police power, cited or discussed in the majority opinion and in this dissenting opinion, show conclusively that this Court, or any other appellate court, has not, in any nuisance case, recognized the aesthetic factor, standing alone, as a proper basis for the award of injunctive relief but instead this Court has expressly rejected it as such in Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 191 S. E. 368, 192 S. E. 291, 110 A.L.R. 1454, which for some strange and unexplainable reason is cited and relied upon in the majority opinion; and that, until the present decision, this' Court has never sanctioned the exercise of the police power on the basis of the aesthetic factor standing alone, but on the contrary has expressly refused to do so in the cases of State ex rel. Nunley v. Mayor and City Council of the City of Montgomery, 94 W. Va. 189, 117 S. E. 888; State ex rel. Sale v. Stahlman, 81 W. Va. 335, 94 S. E. 497; and Fruth v. Board of Affairs, 75 W. Va. 456, 84 S. E. 105, L.R.A. 1915C 981, none of which is “outmoded” or “superseded” or has been overruled, modified, criticized or in any wise departed from, and each of which, being directly in point, is regarded by me, and should have been regarded by the majority, as controlling and binding authority in the decision of this case. None of the four cases cited in this paragraph of this opinion supports, but all of them directly conflict with, the decision of the majority which is not sustained by any decision of an appellate court in any *77well considered case in any other jurisdiction in this country. I make particular reference to the many cases cited in the concurring opinion of Judge Kenna in Parkersburg Builders Material Company v. Barrack, 118 W. Va. 608, 614, 192 S. E. 291.
I am disturbed by the decision of the majority in this case, not because I like to look at an unsightly junk yard, which I do not like to do, but because, in my opinion, it constitutes an unwarranted extension of the police power to the maintenance and operation of lawful business enterprises as to which the police power bears no actual or substantial relation to the public health, safety, morals or general welfare, but as to which the vague, uncertain and practicably indefinable aesthetic factor may predominate; and I am fearful that the exercise of that far-reaching attribute of sovereignty in any such instance will inevitably result in the violation or destruction of the personal and property rights which the just compensation and due process provisions of the Constitution of this State and the Constitution of the United States were designed and intended permanently to safeguard and preserve. Otherwise stated, I would rather safeguard the constitutional personal and property rights of all the people of this State and in so doing tolerate the proper operation of unsightly and unpopular junk yards within it than to sanction a decision which results in the elimination of junk yards at the cost of the loss or the limitation of fundamental rights which are essential to the freedom of the people.
For the reasons stated and in reliance upon the applicable and controlling authorities cited, quoted from and discussed in this dissenting opinion, I would reverse the judgment of the circuit court to the extent that it upholds the constitutionality of the challenged statute in its general scope and broad outline, as a valid exercise of the police power of the State, but would hold instead that the statute in its entirety is unconstitutional, void and of no force and effect.